Alderton v Department of Police and Emergency Management
[2008] TASSC 69
•13 November 2008
[2008] TASSC 69
CITATION:Alderton v Department of Police and Emergency Management [2008] TASSC 69
PARTIES: ALDERTON, Edward James
v
DEPARTMENT OF POLICE AND EMERGENCY MANAGEMENT
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 865/2007
DELIVERED ON: 13 November 2008
DELIVERED AT: Hobart
HEARING DATE: 1 October 2008
JUDGMENT OF: Slicer J
CATCHWORDS:
Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Duty of care – Fatal injuries.
Woods v Multi Sports Holdings (2002) 208 CLR 460, applied.
Langridge v R [2004] 12 Tas R 470, followed.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Appellant: C J Gunson
Respondent: S J Bender
Solicitors:
Appellant: Blissenden Lawyers
Respondent: Director of Public Prosecutions
Judgment Number: [2008] TASSC 69
Number of paragraphs: 34
Serial No 69/2008
File No 865/2007
EDWARD JAMES ALDERTON
v DEPARTMENT OF POLICE AND EMERGENCY MANAGEMENT
REASONS FOR JUDGMENT SLICER J
13 November 2008
The applicant seeks review of his conviction and sentence on a complaint, sworn by the respondent (ZXY v Tasmania Police [2008] TASSC 55), alleging offences of causing death by negligent driving, contrary to the Traffic Act 1925, s32(2A). At trial the applicant had formally admitted, in accordance with the Evidence Act 2001, s191:
"1That on the 25th June 2006 Catherine Marie tamayo ('the deceased') died.
2That the deceased's death was as a consequence of injuries sustained by her as a result of a collision between a bicycle being ridden by her and a Toyota Landcruiser Reg No DJ 9824 being driven by the defendant, Edward James alderton, on the East Derwent Highway in the State of Tasmania on the 25th June 2006."
The applicant conceded for the purpose of this appeal, that if the deceased's bicycle was struck whilst it was on the sealed portion of the roadway, the finding of guilt was not susceptible to challenge. The defence position at trial was that the cyclist had been travelling along the gravel verge and had, on the sudden, veered into the path of the applicant's vehicle. The resultant penalty, a six month sentence of imprisonment, wholly suspended, and 18 months' licence disqualification, was manifestly excessive.
The essence of the appeal is that the learned magistrate drew unpermitted inferences and conclusions from the primary evidence and could not have been satisfied beyond reasonable doubt that the elements of the offence had been proved.
The complaint alleged, as particulars of negligence, that the applicant:
"1 Failed to give sufficient room between your vehicle and tamayo's bicycle whilst attempting to overtake.
2Failed to manoeuvre your vehicle as to avoid a collision.
3You failed to drive at an appropriate speed having regard to the circumstances.
4You drove the vehicle whilst it was not in a roadworthy condition."
Particular 4 was repeated in a separate charge alleging an offence found proved by the magistrate against the Vehicle and Traffic (Vehicle Standards) Regulations 2002, reg4(1)(b). It has no import in this review since there was no causative link between the breach and the cause of death.
The deceased had been cycling, in company, along the East Derwent Highway at Old Beach but had fallen some little distance behind the group. She was wearing a fluorescent vest, described variously as coloured green or orange. Both the cyclist and the applicant were travelling in the northbound lane. The accident occurred at approximately 2.15pm, on a straight portion of the highway.
Forensic examination of the scene of the accident showed the sealed portion of the road to be 7.4m in width, although there was some confusion as to whether the northbound lane was 3.6 or 3.8m. Marks on the ground and accident debris extended over some 50 metres. Uncontradicted evidence showed that the applicant's vehicle had travelled some distance beyond the impact area, but had been reversed to a point approximately 20 metres north of a bloodstain located on the gravel verge. The bicycle had been struck near the "bull bars" of the applicant's light truck and remained lodged between them and the vehicle's body until removed by the applicant. The motor vehicle was 1.760m wide at the front and its body protruded from the bull bars by some 22mm on each side. The learned magistrate found that the bicycle had been caught "at or near the bull bar or otherwise clearly having come into or under it from the front". In relation to the point of impact, the learned magistrate concluded:
"According to Noel Clarke, the Transport Inspector, the main point of impact to the cycle was to the rear wheel. So even if it was the far left of the front of the truck which first contacted the cycle, the bull bar and the cycle must have overlapped, as it were, by at least a little more than half the width of the cycle, perhaps 250 millimetres. Certainly the right shoulder of the rider would have overlapped by not less than that amount.
The point of impact on the truck has been the subject of submissions, which centred upon the vagueness of the result of the enquiry into the identity of the red plastic found on the bull bar. In short, it could not be matched to a probative extent with plastic from the cycle. In addition, it does not follow that an object like this, once struck on the wheel, will impact with another part of the truck in a straight line from the initial point of impact.
Accordingly the most which is established beyond reasonable doubt is that the bull bar hit the cycle somewhere to the left side, possibly the extreme left. I do conclude it was the bull bar rather than an object to the side of the truck including the front left tyre, for reasons already stated."
The applicant was interviewed by police on 9 July 2006, two weeks following the accident. He told them that he did not recall passing any cyclists during his journey, which confirmed that the cyclist had not caught up with her companions. He claimed to have been wearing prescription sunglasses, a matter not disproved. He recalled the cyclist to be wearing orange coloured clothing, that he had first sighted her when some 30 – 40 feet distant, later amended to 25 – 30 metres, and that there were no oncoming vehicles at that time. His account of the circumstances was vague and at times inconsistent, such account including:
"alderton: I… I was just driving along quite normal, I'd be doing… would have been probably about 60… she doesn't go great speed – the truck – and ah… I seen… I noticed the person on the side of the road, going along the side of the road, and virtually when I got nearly level with her, she seemed to wabble [sic] or swerve or something and the… and the front of the actual bumper bar or… just hooked her.
mcguinness: Ok. Um… when you say you noticed the female in front, how far in front of her was she… were… were… were …
alderton: Oh… just normal vision.
mcguinness: A normal… what sort of distance would you think?
alderton: Oh… probably 30 or 40 feet.
mcguinness: 30-40 feet or just…
…
mcguinness: Yeah. So when you first noticed the female, you said that she was about 25-30 metres in front of you …
alderton: Yeah.
mcguinness: Where was she positioned on the road?
alderton: Just going along the side of the… sort of gravely road… just sort of along there.
mcguinness: Ok. Was she on the gravel?
alderton: No.
mcguinness: Ok, she was on the right?
alderton: Might have been on the edge of it, I don't know, but she was on… just going along where I was going along here like that and just when I virtually got here, she's in a wobble or something… (Inaudible) …
mcguinness: Ok. So… um… how far in from the side of the road would you estimate that she was? You say that she was pretty close to the side …
alderton: Oh… she'd be nearly on the bitumen, I suppose.
mcguinness: So shes [sic]… she was on the bitumen?
alderton: Nah, said she probably would have been nearly on the bitumen. I was on the bitumen. She might have been nearly on the bitumen.
…
mcguinness: Ok, so just try and take a moment and just think as far as… like you said you noticed her… she was in front of you, probably about 25-30 metres and see if you can visualise or notice whether or not she was actually on bitumen or on the gravel.
alderton: I think she might have been on the… on the gravel.
mcguinness: You think she was on the gravel?
…
alderton: No, she could… she couldn't be… then I would have been over the white line on the other side of the road, if you take a metre off your road to go past her.
oakes:Ok. We'll probably come back to that.
mcguinness: Ok, um… What occurred, like… how… how did you realise that you'd hit her?
alderton: Oh… I just felt the bump and I …
mcguinness: When you felt the bump, what went through your mind? Did you realise what had occurred?
alderton: Yeah, near the flack [sic] I did, yeah, and then I pulled up and I just sort of went… I didn't know what to do, so I run back and seen the girl laying there and then a chap… why didn't no one else pull up… the only car… I was just… the only car pulled up was on the other side of the road …
mcguinness: Ok.
alderton: … and that was a fair while.
mcguinness: Just prior to hitting her, what… what happened there? Like just… just that… that split second before you hit her, what happened? Was she… did she maintain a straight line?
alderton: That's what I said; I thought she wobbled, but I… that's what… she seemed to come like that. I don't know if you… if you got up to pedal or what, I don't know.
mcguinness: Ok. Did you swerve to …
alderton: It happened that quick.
mcguinness: Ok. So do you know if you swerved, or did you maintain a straight line or …
alderton: Oh… more or less I may have swerved. I don't …
mcguinness: Ok. You can't recall?
…
alderton: I realised I'd hit something.
mcguinness: Yep. But you didn't know what it was at the time?
aldertonOh… It must have been her, because I seen her and virtually …
mcguinness: Cause you did see her in front of you?
aldertonYeah.
mcguinness: Yeah, ok. Um… what happened then… did you… did you apply your brakes or… or what happened?
aldertonI… I stopped the vehicle.
mcguinness: Yeah… How …
aldertonAnd then I what's her name… I stopped the vehicle and then I jumped out and ran back and seen her laying on the bank and then I got my vehicle… backed my vehicle off the… off the road.
mcguinness: Ok. How long… what sort of distance did it take for you to stop?
aldertonOh… probably 30… 30… 30 good feet, I think.
mcguinness: Ok. Did you apply your brakes hard or …?
aldertonNot real hard, no.
mcguinness: Not real hard. Ok. Did you maintain a straight line or… when you applied your brakes just to come to a stop or …?
aldertonI just more or less went straight ahead more or less, into the …
mcguinness: You came into the side …
aldertonI came right in and then I …
mcguinness: Right, so you say that when you pulled up… when you initially pulled up at the first instance, how far past the cyclist do you think you were?
aldertonOh… Hard to say that… I was a bit past her.
mcguinness: How fars [sic] a bit?
aldertonOh… Probably 30 or 40 feet I suppose. Probably a little bit better."
The applicant said that he found that the bike was more or less caught underneath his vehicle's front wheel and he removed it before reversing closer to the point of impact. He did not claim to have swerved to avoid the collision. He maintained that he had seen the cyclist wobble just before impact and denied that he had been travelling faster than 60 kilometres per hour. Other witnesses had provided statements which referred to the position of the sun and its effect on driver visibility. In relation to visibility, the applicant relevantly made the following answers to the interviewing officer:
"oakes: Ok. Was the sun actually in your eyes at the time of the accident?
alderton:It wouldn't be… the sun would be in my eyes, but it wouldn't have affected me.
oakes:It wasn't affecting you?
alderton:No.
oakes:Ok. I've got a photo here that was taken at the scene with me sitting in the driver's seat and this is when I first arrived at the scene. Ok, do you agree that the… the windscreen in your vehicle is quite dirty?
alderton:Oh… I suppose it is – the actual dirt.
oakes:Ok, I put it to you in fact; the windscreen on both the inside and outside was particularly dirty …
alderton:It was parked… parked underneath the truck… ah… underneath the trees and they probably had it up the paddock.
oakes:And I take it you don't clean your windscreen very often?
alderton:Oh… now and then.
oakes:Now and then? So when was the last time it would have been cleaned?
alderton:Oh… last time we've had the frost out here… (inaudible)…
oakes:Ok. What I'm getting at… I'm going to put to you that in fact you didn't see the cyclist at all. What have you got to say to that?
alderton:No, I did.
oakes:Determined that you did see the cyclist?
alderton:Yeah.
oakes:Ok. Um… now how far did she actually wobble?
alderton:I know she actually wobbled or she just got up to pedal, I'm not too sure.
oakes:Ok, so she didn't move too much by the sounds of it. Would that be fair to say?
alderton:Just… just probably natural.
oakes:Yep, so how far would she have moved?
alderton:Oh… I couldn't say.
oakes:Ok. Would it be 10 centre metres [sic] or a metre?
alderton:Oh… I couldn't say."
On that evidence related above, the learned magistrate was entitled to conclude that the bicycle had been struck by the front left side of the applicant's vehicle. Whether or not the bicycle was on the sealed or gravel portion of the road was irrelevant. If the vehicle struck the bicycle whilst it was on the gravel, then the prosecution had established negligence; an identical conclusion could be reached if the bicycle was on the sealed portion. Gravel markings suggested that the wheels of the bicycle had been pushed onto the gravel portion, but such was not clearly established.
The question for the trial magistrate was whether the evidence permitted a finding beyond reasonable doubt that the cyclist had not veered or "wobbled" into the path of the vehicle and that the applicant had not driven too close to another road user. Grounds of appeal are directed to the issues related to the permitted use of evidence by the learned magistrate and the inferences and conclusions he drew and reached.
Grounds of motion to review
The applicant claims error in the findings of fact and the means by which the learned magistrate informed himself and drew inferences. The grounds state:
"1The learned magistrate erred in law by convicting the applicant of the offence contrary to the Traffic Act 1925, s32(2A) in circumstances in which he had found that there was no explanation for the collision between the motor vehicle driven by the applicant and the bicycle ridden by the deceased, other than the possibility that the deceased may have wobbled on her bicycle.
2The learned magistrate erred in law by finding that the minimum safe distance by which a motorist should pass a cyclist on rural or semi-rural roads is 2 metres.
3The learned magistrate erred in law when determining the minimum safe distance by which a motorist should pass a cyclist on a rural or semi-rural road by taking into account car stickers which suggested a minimum safe distance of 1.5 metres that the learned magistrate had noticed after the hearing of the complaint in circumstances in which:
(a) the said car stickers were not in evidence before the learned magistrate;
(b) the source of the 'opinion' proffered by the said car stickers were [sic] not disclosed;
(c) the applicant, his solicitors and his counsel (and the complainant's counsel) were not given the opportunity to be heard on the issue.
4The learned magistrate erred in law by taking judicial notice that the width of the deceased's bicycle was 'about 450 millimetres wide, or a little more' in that:
(a) The width of a bicycle is not a matter of common knowledge attracting the operation of S144 of the Evidence Act 2001;
(b) the learned magistrate failed to comply with S144(4) in that he did not give the applicant and the complainant the opportunity to make submissions as to whether the learned magistrate could take judicial notice that the width of a bicycle is 'about 450 millimetres wide, or a little more'.
5The learned magistrate erred in law by finding that the deceased's bicycle was 'less than 150 millimetres apart from the pedals in circumstances in which there was no evidence as to the width of the bicycle'.
6The learned magistrate erred in law by accepting the evidence of Joshua Brendon Sproule and in so doing failed to provide any or any adequate reasons to explain his acceptance of that evidence notwithstanding the significant inconsistencies between the evidence of Mr Sproule, that of other witnesses and the applicant's audio-visually recorded interview with officers of Tasmania Police.
7The learned magistrate erred in law by rejecting the applicant's version of events as evidenced in his audio-visually recorded interview with officers of Tasmania Police in that the learned magistrate wrongly applied too strict an approach to the interpretation of the said interview.
8The learned magistrate erred in law in that he convicted the applicant of the offence contrary to the Traffic Act 1925, s32(2A) in circumstances in which no reasonable magistrate could have convicted the applicant on the evidence adduced at the hearing of the complaint."
Counsel for the applicant conducted a meticulous examination of the evidence and the findings reached by the learned magistrate. In deference to his assiduous and skilful analysis, the grounds will be considered in the categories identified during the hearing of this review.
Knowledge
Grounds 3, 4 and 5 claim impermissible use of knowledge used in the making of the findings. The learned magistrate was sitting as a judge in law and a finder of fact. As a fact-finder he was entitled to bring into his determination his own general knowledge of life and the human experience. The Evidence Act, s144, provides:
"144 — Matters of common knowledge
(1) Proof is not required about knowledge that is not reasonably open to question and is —
(a)common knowledge in the locality in which the proceeding is being held or generally; or
(b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge referred to in subsection (1) in any way the judge thinks fit.
(3) The court, including the jury if there is a jury, is to take knowledge referred to in subsection (1) into account.
(4) The judge is to give a party any opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced."
The addition of the words "or generally" contained in s144(1)(a) expands the ambit of the provision beyond matters such as road, suburbs, significant buildings, and the like, Malone v Smith (1946) 63 WN NSW 54. It is common knowledge that ordinarily bicycles have two wheels and are narrow. Common knowledge permits a fact-finder to find that the outward portion of the handlebars do not exceed the width of the average body. Here the magistrate was undertaking an exercise in comparative distances in an attempt to determine the respective position of the vehicles and possible points of impact. In relation to the width of the bicycle he stated in his reasons at 2 and at 6 – 7:
"No one measured the bike. However I take judicial notice that at the handlebars it was about 450 millimetres wide, or a little more. If one works off the scale of 'P11', a similar result is obtained, at a minimum. The rider of the bicycle must have been at least as wide as it was, not less than approximately one half of a metre. The rest of the bicycle was very narrow – less than 150 millimetres apart from the pedals, but they were narrower than the handlebars.
…
The cyclist and her cycle were half a metre wide, approximately. The right hand half of both, again approximately, must have been over the edge line. Given the notorious difficulty of holding a cycle on a perfect line, it is not unlikely that the cycle moved to some extent. In such a position, either the cyclist would have about 225 millimetres of herself to the right of the line or the defendant should have anticipated the possibility."
He was entitled to make use of those approximations. No one had given evidence other than that the deceased was riding a normal bicycle. The narrowness of a bicycle is known generally to the community (Commonwealth Shipping Representative v P & O Branch Service [1923] AC 191). This was not a case of attempting to analyse scientific material and reaching a conclusion based on controversial opinion (Cavanett v Chambers [1968] SASR 97). He was entitled to conclude, absent direct evidence, that the width of the bicycle was approximately 0.5 metres. He was not required, in the circumstances of this case, to re-open the hearing to invite the parties to submit to the contrary. Relevant to this case is the analysis undertaken by McHugh J in Woods v Multi Sports Holdings (2002) 208 CLR 460, which included:
"[64] As a general rule, facts in issue or relevant to a fact in issue must be proved by admissible evidence. The doctrine of judicial notice is an exception to this rule. A court may judicially notice a fact whenever it 'is so generally known that every ordinary person may be reasonably presumed to be aware of it' Holland v Jones (1917) 23 CLR 149 at 153. The information which the court acquires by taking judicial notice of facts is not 'evidence strictly so called' (Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663 at 691; Saul v Menon [1980] 2 NSWLR 314 at 325; R v Henry (1999) 46 NSWLR 346 at 364 [76]). Facts that may be judicially noticed fall into two categories: facts that can be judicially noticed without inquiry and facts that can be judicially noticed after inquiry. Facts that can be judicially noticed also fall into two other categories: (1) adjudicative facts and (2) legislative facts.
[65] An adjudicative fact is a fact in issue or a fact relevant to a fact in issue. A legislative fact is 'a fact which helps the court determine the content of law and policy and to exercise its discretion or judgment in determining what course of action to take' (Heydon, Cross on Evidence, 6th Aust ed (2000), p 122 [3010]) . In contrast with adjudicative facts, which always relate to the issues between the parties, legislative facts generally relate to the law-making function of the judicial process. As Brennan J pointed out in Gerhardy v Brown (1985) 159 CLR 70 at 141, a court that is considering the validity or scope of a law 'is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties'. Whether the law is a Constitution, a legislative enactment or a principle or rule of the common law or equity, the 'validity and scope of a law cannot be made to depend on the course of private litigation' (Gerhardy v Brown (1985) 159 CLR 70 at 141-142). In R v Henry(1999) 46 NSWLR 346 at 362, Spigelman CJ said that the means of acquiring information 'for the purposes of policy development should not be confined by the rules of evidence developed for fact finding with respect to matters that only concern the parties to a particular case'. As a result, as the learned author of Cross on Evidence has pointed out, '[i]t is clear from the cases that judges have felt themselves relatively free to apply their own views and to make their own enquiries of social ethics, psychology, politics and history where relevant without requiring evidence or other proof' (Heydon, Cross on Evidence, 6th Aust ed (2000), p 122 [3010]). And in Rendell v Paul (1979) 22 SASR 459 at 465-466 cited with approval by Moffitt A-CJ in Saul v Menon [1980] 2 NSWLR 314 at 325, King CJ, with the approval of the other members of the Full Court of the Supreme Court of South Australia, said that judicial notice can be taken of 'general economic trends, the effects of inflation, prevailing rates of interest and returns on investments'. Similarly, the Supreme Court of Victoria has taken judicial notice of prevailing economic conditions (National Trustees Executors & Agency Co of Australasia Ltd v Attorney-General (Vict) [1973] VR 610. See also Bryant v Foot (1867) LR 2 QB 161; Hawkins v Lindsley (1974) 49 ALJR 5; 4 ALR 697; Rendell v Paul (1979) 22 SASR 459 at 465-466; Saul v Menon [1980] 2 NSWLR 314 at 325) .
(b) Notorious facts judicially noticed without inquiry
[66] Facts that have been judicially noticed without inquiry include: that cancer is a major health problem in the community and, despite research, little progress has been made in controlling it (Re E M Murray (dec); Permanent Trustee Co of NSW Ltd v Salwey [1964-5] NSWR 121 at 122); that HIV is a life-endangering disease (Mutemeri v Cheesman [1998] 4 VR 484 at 492); that a child victim of sexual assault may be reluctant to resist, protest or complain about the sexual assault, due to fear of punishment or rejection (M v The Queen (1994) 181 CLR 487 at 515, per Gaudron J); and that many lawyers now charge hundreds of dollars an hour for their services, that legal aid is often unavailable to litigants in tort cases and that the cost of those services is substantially increased when lawyers cannot give advice to their clients because the law is unpredictable (Perre v Apand Pty Ltd (1999) 198 CLR 180 at 215 [89], per McHugh J.) .
(c) Notorious facts judicially noticed after inquiry
[67] On countless occasions, Justices of this Court have used material, extraneous to the record, in determining the validity and scope of legal rules and principles. They have frequently relied on reports, studies, articles and books resulting from their own research after the case has been reserved and parties have made their submissions. In Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 196, Dixon J said:
'Just as courts may use the general facts of history as ascertained or ascertainable from the accepted writings of serious historians... and employ the common knowledge of educated men upon many matters and for verification refer to standard works of literature and the like... so we may rely upon a knowledge of the general nature and development of the accepted tenets or doctrines of communism as a political philosophy ascertained or verified, not from the polemics of the subject, but from serious studies and inquiries and historical narratives. We may take into account the course of open and notorious international events of a public nature. And, with respect to our own country, matters of common knowledge and experience are open to us... '
[68] In Timbury v Coffee (1941) 66 CLR 277 at 283-284, Dixon J, in the absence of any medical evidence, consulted a medical text on the extent to which acute alcoholism could affect the mental processes of the testator. In Alexander v The Queen (1981) 145 CLR 395 at 409, Stephen J relied on published works of psychology in reaching conclusions as to the reliability of identification evidence. In Jaensch v Coffey (1984) 155 CLR 549 at 600-601, Deane J referred to legal articles and medical journals, reports, bulletins and textbooks in explaining the causes of psychiatric injury. In Jones v The Queen (1997) 191 CLR 439 at 463, Kirby J referred to extraneous material to explain why children may delay in complaining about sexual assault. Similarly, in Ryan v The Queen (2001) 206 CLR 267 at 281-282 [42]-[44], I referred to psychiatry journals and reports in discussing sentencing approaches for paedophiles. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, Callinan J referred extensively to newspapers, books, lectures, academic papers, the journalists' Codes of Ethics and a Senate Committee Report to show 'the realities of the modern publishing, entertainment and media industries, as well as the activities of members of the Executive branch of government in this country' Lenah Game Meats (2001) 208 CLR 199 at 299 [253]."
The reference to the "car stickers" noticed by the learned magistrate after the hearing is more problematic, but unexceptionable when placed in context. The observation was made immediately after the learned magistrate had, consistent with the evidence, concluded that at the relevant time:
"The speed of the vehicles were greatly different. The truck was being driven at 80kph and the cycle was ridden at a much slower speed. If something went wrong at the last minute, before passing commenced, there would be little or no margin for error. There would be no opportunity to stop or adequately to swerve."
His reasons continued:
"I have no doubt at all that it is a negligent practise to drive a car well within a metre of a rider on a rural or semi rural road. I think two metres to be a reasonable minimum, although I have since this trial, noticed car stickers suggesting 1.5 metres should be allowed. The areas where speed limits of 100 or 110 kph may be enjoyed, a driver travelling at such speed should probably allow a much greater margin. It is notorious that riders can abruptly diverge from their original paths, unpredictably and at times, uncontrollably. This is part of what a prudent driver must allow for. In my view, absent an explanation, it is negligent not to do so. I note that if the rider did happen to be in the gravel, that would reflect the probability of a lack of direction and/or control, and further she would be affected in her ability to maintain a straight line by virtue of being in the gravel."
In that context, the reference was but an aside. His finding that it was negligent to drive "a car well within a metre of a rider" was a conclusion or judgment, not a recitation of fact. Exercise of judgment is what is required of a fact-finder (Cook v Jennings [2007] TASSC 40; State of Tasmania v Clark [2000] TASSC 126). The learned magistrate was not using a "car sticker" as a guide to determine negligence. If anything, he made allowance which favoured the applicant providing his own assessment as being two metres. In that regard, the general statement of McHugh J in Woods is apposite:
"[71] The cost of injuries to society and the effects on the individuals who suffer them have undoubtedly played a significant role in raising the standard of care required of those who owe duties of care. This is particularly so when the duties owed arise in the course of conducting activities organised for the financial benefit of those who owe the duties. Commenting on the rise in the standard of care required of employers in the previous twenty or thirty years, Brennan and Deane JJ, writing in 1986, said Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 314 :
'While it is true that that has, in part, been the consequence of the elucidation and development of legal principle, it has, to a greater extent, reflected the impact, upon decisions of fact, of increased appreciation of the likely causes of injury to the human body, of the more general availability of the means and methods of avoiding such injury and of the contemporary tendency to reject the discounting of any real risk of injury to an employee in the assessment of what is reasonable in the pursuit by an employer of pecuniary profit'."
Ground 3 is not sustained.
Finding of standard
The finding of fact was that assuming the applicant had not moved to the centre of the road to pass the cyclist, the distance allowed by the roadway for passing was less than two metres. Accepting for the purpose of analysis that the applicant's vehicle had not entered onto the gravelled verge, the magistrate's calculation showed there to be a minimal distance available for clear passage. If the applicant's vehicle had travelled onto the gravel verge, negligence was clearly established. If, as asserted by the applicant, he did not move his vehicle across the centre point, then he must have passed close to the cyclist, even if such was itself on the verge, but close to the sealed portion. If the bicycle was on the bitumen, then the act of passing was more dangerous. Given the finding on that point made by the learned magistrate, the finding of negligence was inevitable. He dealt with this issue in the terms stated in 18 above. He was required to exercise judgment as to the appropriate duty and standard. Ground 2 is not sustained.
Findings of fact
Grounds 1, 2 and 7 are essentially complaints of fact. This is not a case by way of rehearing (cf Fox v Percy (2002) 214 CLR 118; James v Eyles [2007] TASSC 55). The question is whether the facts critical to the chain of reasoning were not established to the requisite degree and the finding was unsafe or unsatisfactory in the sense that it is unreasonable or cannot be supported by the evidence and in all the circumstances it would be dangerous to allow the conviction to stand (Kelly v O'Sullivan (1995) 4 Tas R 446; Langan v White [2006] TASSC 83). Although some of the findings included ones of credibility, much of the reasoning was supported by clearly proven evidence.
The learned magistrate provided extensive reasons for his decision. He analysed the evidence of witnesses called by the prosecution and accepted there to have been inconsistencies in their accounts. But these inconsistencies were minor, often found in cases involving a series of events compressed in time. He considered in detail the account given by the applicant to police and its difference from what he had told a witness at the scene. He correctly summarised the position of the applicant to have been:
"1The defendant always drives in the middle of his lane, but on this occasion he could have been a little bit more to the left.
2He agreed he could have stayed within his lane and yet have given the cyclist more room than he did."
and was entitled to:
"… conclude that the defendant was no further to the right than the centre of his lane at the time of the collision."
It remained for the fact-finder to consider the speed of the applicant's vehicle and the accuracy or otherwise of the driver. A significant witness was Joshua Sproule who had travelled behind the applicant's vehicle. He stated his speed to be equivalent to the preceding vehicle, namely approximately 80 kilometres per hour. He saw a cyclist wearing a "bright yellow sponsored like bike top" when he had first seen her for about five seconds and:
"She would have been within a metre of - on the left hand side, on the left hand side of the road, and she was probably about fifteen, twenty metres – twenty five metres in front of us. "
He experienced difficulties with visibility because of the position of the sun, but claimed that the cyclist "kept a pretty well straight line". He described his version of the event as:
"I lost sight – lost sight of the cyclist as the four wheel drive passed her and then I noticed there was a dust cloud to the left hand side of the four wheel drive – "
"The four wheel drive was just doing his normal thing just driving straight ahead.… he was just keeping a constant eighty kilometres an hour, wasn't veering or nothing.… After the four wheel drive had gone past that's when I seen the cluster – dust of cloud and then I noticed that the water bottle from the bike must have hit my window and I've just got water all over my window.… That's when I still kept following the four wheel drive. The four wheel drive started to slow down slowly, it probably took anywhere from twenty five, thirty five metres for him to pull over on the left hand side of the road up a bit further. Cyclist? …No, no. I seen the bike get dragged along the side of the four wheel drive though, it was like it was wedged in between the wheel or the bulbar. But as for the cyclist herself I could not see her."
He estimated that the bicycle was dragged for possibly 1 to 15 metres and thought "it was one of the wheels were wedged in between the bullbar [sic] and where the headlights are, or it was between the wheel and the guard".
Mr Sproule was carefully cross-examined and some inconsistencies were exposed. But no suggestion was put to him that he had not witnessed the event, or something made of impaired vision because of the sun being in his eyes. His evidence was to some extent corroborated by other witnesses, including Stuart Harris who saw the applicant's vehicle stopped about 120 metres north from where one cyclist was lying before reversing to a position some 100 metres closer. He also saw the applicant place the bike in the tray of his vehicle before later throwing it onto the road. He recalled the applicant repeating "she came out at me, she came out at me" some three or four times. A third witness, Colin Cocker, also driving north, observed "a large cloud of dust and dirt going up in the air from another vehicle" which was approximately 80 to 100 metres to his front. He saw:
"The vehicle pulled off to the left hand side slightly and as I drew close to the vehicle I slowed my vehicle down so that I could pass, because it was still parked there on the road, and the other thing that was happening was that the man was getting out of the vehicle, and as I passed the vehicle, the white vehicle, he was standing beside the door and he was looking like oh – frustrated or angry, he then went back – "
He observed the bicycle to be "jammed in under the bumper bar and the bumper bar and the front left hand wheel". He saw the applicant pull the bicycle from under the bumper bar.
The applicant neither gave nor adduced evidence. From that evidence, together with the scene investigation and the opinion of the examiner, his Honour concluded negligence. He was entitled to accept the evidence of Sproule as to speed and his account, consistent with the applicant's version, that the vehicle had not taken evasive action or moved to the other side of the road. His Honour dealt with the issue of the position of the cyclist at the point of impact in the following terms:
"There is considerable uncertainty from the defendant about her position. His immediate statements are contradicted by his utterances at interview, which themselves are variable. At times he has her in the gravel, at times on the bitumen. At his most definitive, he has her in the narrow area to the left of the edge line and if on the gravel, only just so. Mr Sproule has her certainly on the bitumen. I see no reason to doubt this, considering the unconvincing and variable statements about it from the defendant. It would certainly be surprising if she voluntary rode on the gravel in what was clearly a road bicycle. If she was riding on the gravel, her ability to hold a straight line would be adversely effected, which carries its own implications. I will make some observations later about the common reality that the path of a cycle will often be imperfect, they being contrivances with just two wheels.
I take Mr Sproule's evidence as an estimate but accept him on the question of her position on the bitumen. I also accept that the bicycle was, at all material times about a metre onto the northbound lane. I accept that much of the defendant's admissions which put her on the bitumen. He was too unconvincing and variable at interview to cause me to doubt Mr Sproule's evidence about her position. Mr Sproule had sun in his eyes, made a mistake about the location, vis-a-vis Jetty Road and rather strangely left the scene but was unchallenged about his evidence of the rider's position on the road."
and further:
"However, the reality is that the truck was driven into the back wheel of the cycle, so the left of the truck and the centre of the cycle were in the same place at impact. If one was a metre from the left of the road, so was the other. The defendant says that is where he was. Mr Sproule agrees. The defendant puts the bicycle off the road, but then there would have been no accident. Mr Sproule puts her one metre on the bitumen. That explains the accident. The only other explanation concerns the wobble, or that she swerved into his path. I am not able to construe all of his utterances on that subject as a plausible claim supporting the latter.
So, I find it to be negligent to do what he said he did and it is negligent to what Mr Spoule said he did. I find that the latter represents what happened."
He was entitled, on the evidence, to be satisfied beyond reasonable doubt that the applicant had caused the death of another by an act of negligent driving. Grounds 1, 6 and 7 are not sustained.
The motion to review the conviction is dismissed.
Penalty
The Court will apply the principles stated by the High Court in Dinsdale v R (1999) 202 CLR 321 and the Court of Criminal Appeal of this Court in Langridge v R [2004] 12 Tas R 470.
The applicant, aged 65, had old convictions. He was not entitled to the benefit of a plea of guilty, nor had he accepted responsibility for the consequences of his driving. The suspended sentence was apposite combining the factors of an act causing death, a brief, but not wilful, act, and the subjective characteristics of the offender. The period of disqualification was not itself excessive. However, one of the terms of suspension ought be set aside. The terms were that the applicant be of:
"… good behaviour, on condition that you do not commit any breach of the Vehicle and Traffic Act or the Traffic Act or the Road Safety (Alcohol and Drugs) Act, or any rules or regulations under those Acts for four years."
The last named condition is impossible to identify or enforce. The term does not distinguish between moving and non-moving offences or degrees of culpability. It would be either impossible or non-productive to redefine the term. To that extent, the motion to review is upheld and the order made by the learned magistrate varied.
Orders:
(1)The motion to review conviction be dismissed.
(2)The motion to review against sentence is upheld and the order made by the Court of Petty Sessions on 20 November 2007 varied by deletion of the condition of suspension referring to rules or regulations made under the legislation referred to in the order.
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