Ansell v Crook - [2009] WASC 82

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ANSELL -v- CROOK [2009] WASC 82

CORAM: HASLUCK J

HEARD: 17 DECEMBER 2008

DELIVERED : 1 APRIL 2009

FILE NO/S: SJA 1071 of 2008

BETWEEN: CHERIE JESSICA ANSELL
Appellant
AND
MICHAEL PETER CROOK
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G N CALDER
File No  :PE 50986 of 2007

Catchwords:

Criminal law - Appeal against conviction for dangerous driving occasioning bodily harm - Nature and elements of the offence of dangerous driving - Function of appellate court in reviewing trial - Onus and standard of proof - Manner of driving and actual driving behaviour - Visibility towards oncoming traffic partially obscured when entering intersection - Assessment of evidence with regard to credibility of witnesses - Appellant's vehicle situated in path of oncoming vehicle - Whether sufficient care exercised by driver - Turns of own facts - Appeal dismissed

Legislation:

Road Traffic Act 1974 (WA), s 59A(1)(b)

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms H E Prince
Respondent: Ms N Eagling

Solicitors:

Appellant: Marilyn Loveday
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

De Vries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32
Jiminez v The Queen (1992) 173 CLR 572
Kaighin v The Queen (1990) 1 WAR 390
Liberato v The Queen (1985) 159 CLR 507
McPherson v Lucas [2008] WASCA 56; (2008) 181 A Crim R 587
Re The State of Western Australia; Ex parte Worswick [2005] WASCA 187
Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193

HASLUCK J:

Introduction

The appellant, Cherie Jessica Ansell, seeks leave to appeal against a conviction for dangerous driving occasioning bodily harm contrary to s 59A(1)(b) of the Road Traffic Act 1974 (WA).
Section 59A(1)(b) of the Road Traffic Act provides that if a motor vehicle driven by a person is involved in an incident occasioning bodily harm to another person and the driver was, at the time of the incident, driving the motor vehicle in a manner (which expression includes 'speed') that is, having regard to all the circumstances of the case, dangerous to the public or to any person, the driver commits an offence.
The matter was brought on for hearing in the Magistrates Court of Western Australia at Perth on 12 August 2008 before his Honour Magistrate Calder.
It was common ground at the hearing, having regard to what was said in the course of opening exchanges, that bodily harm was conceded. Further, the identity of the appellant as the driver of the vehicle involved in the incident was conceded. The only live issue was whether the appellant was driving in a manner that was, having regard to all the circumstances of the case, dangerous to the public or any person.

The hearing

The charge arose out of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ansell v Crook

Details

AGLC: Ansell v Crook [2009] WASC 82
Case: [2009] WASC 82
Decision Date: 1 APRIL 2009

CaseChat Overview and Summary

In the matter of Ansell v Crook, the appellant contested a conviction for dangerous driving occasioning bodily harm. The case was heard in the appellate court, which was tasked with reviewing the trial court's decision. The primary issues were whether the appellant exercised sufficient care in their driving and whether the conviction was supported by the evidence. The court also considered the manner of driving, the visibility towards oncoming traffic, and the credibility of the witnesses.

The court examined whether the appellant exercised sufficient care in their driving, focusing on the manner in which they were driving and their actual behaviour at the time of the incident. It was noted that the appellant's vehicle was situated in the path of an oncoming vehicle, and visibility towards oncoming traffic was partially obscured when entering the intersection. The court assessed the evidence presented, including the credibility of the witnesses, and determined whether the appellant's actions constituted dangerous driving. The court found that the trial judge had correctly applied the law and that the evidence was sufficient to support the conviction.

The appellate court concluded that the appellant's driving did not meet the required standard of care, given the circumstances. The court found that the appellant's vehicle was indeed in the path of an oncoming vehicle and that the visibility conditions were such that the appellant should have taken additional precautions. The evidence, including witness testimonies, was deemed credible and sufficient to uphold the conviction. Therefore, the appeal was dismissed, and the original conviction for dangerous driving occasioning bodily harm was upheld.

The court did not make any further orders beyond dismissing the appeal. The appellant's conviction stood as determined by the trial court, and the legal principles regarding the onus and standard of proof were upheld in the appellate review. The court's decision underscored the importance of exercising sufficient care when driving, particularly in conditions where visibility is compromised.

Orders