Appeal of David William Ho

[2006] NSWDC 72

CITATION:	Appeal of David William Ho [2006] NSWDC 72
HEARING DATE(S):	29/09/06
JUDGMENT DATE:	29 September 2006
EX TEMPORE JUDGMENT DATE:	09/20/2006
JURISDICTION:	District Court Appeal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	APPEAL UPHELD; CONVICTION QUASHED; PENALTIES, FINES AND COURT COSTS QUAHSED
CATCHWORDS:	Criminal Law. Appeal from conviction in Local Court - drive in manner that menaced with intent to menace - elements of offence - absence of evidence of intent to menace.
PARTIES:	Regina (Respondent) David William Ho (Appellant)
FILE NUMBER(S):	06/52/0238
COUNSEL:
SOLICITORS:	Mr Djani (Appellant) Ms C Brian (DPP)

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JUDGMENT

1 HIS HONOUR: David William Ho stands charged that he drove his Volvo prime mover, which has a registration number ZFR 643, on the Pacific Highway north of Maclean in a manner that menaced Julian Leonard, with the intention of menacing Julian Leonard.

2 The agreed facts are these: that Julian Leonard and his wife had left Gosford on 9 February, heading north. They had had a couple of hours sleep at a point just north of Maclean.

3 Julian Leonard was to take the first morning shift of driving. He had just awoken. He had pulled his car on to the Pacific Highway and was in the process of increasing his speed when he first saw the truck driven by the appellant.

4 There is no doubt that the appellant was in fact driving his truck in circumstances where he came extremely close to the vehicle that Julian Leonard was driving. Julian Leonard and his wife also had in their son, who was a toddler, in their vehicle.

5 Over a distance that Julian Leonard puts at a minimum of a kilometre and at a maximum of 2 kilometres, the prime mover was variously a foot or so from the rear of his vehicle, and at one point, at least the cabin of the semi-trailer was adjacent to his vehicle on the wrong side of the road on double yellow lines. At this point the vehicles would have been travelling at or close to 100 kilometres an hour.

6 It seems to me that I can be satisfied beyond a reasonable doubt that for a period of something in the order of 30 to 35 seconds or so these vehicles were in close proximity, one to the other.

7 The appellant gave an account to police and indeed to the Court that Julian Leonard in effect pulled out in front of him from a standing start up to a speed of 100 kilometres an hour. The appellant’s evidence was that the distance between the two vehicles when he first spotted Julian Leonard was 40 metres.

8 Given that there are some aspects of the appellant’s statements that I find unreliable, I am inclined to a view that the estimate of 40 metres is also unreliable. In my view it may have been closer to 60 or 80 metres. As I say, I am satisfied that the appellant’s vehicle came extremely close to the rear of Julian Leonard’s vehicle and indeed at some stage crossed the double yellow lines and came up alongside it.

9 The appellant made an observation in his evidence and indeed in his statement which I cannot dismiss as being inaccurate, that is, that from time to time Julian Leonard applied his brakes. The circumstances in which the appellant has Leonard applying the brakes over 10 kilometres of road I do not accept, but my own observation of people who drive is that many of them as they approach a corner touch the brakes and sometimes touch the brakes in the corner. My own view is it is not a sensible driving mechanism, but there are people who almost invariably as they approach a corner, in my experience, put their foot on the brakes. We are talking here about a stretch of road where there were a number of corners.

10 I am satisfied beyond a reasonable doubt of these matters that the Crown must prove: that the appellant was driving a motor vehicle; that the motor vehicle was the motor vehicle nominated in the Court Attendance Notice; that an incident occurred on the Pacific Highway in the relevant region near Maclean; and that the manner of the driving of the appellant was such that it menaced Julian Leonard, that is that he felt fearful. The basis of his fear was the proximity of the larger vehicle near his vehicle in circumstances where he, his wife and child were on board. In my view, Julian Leonard may well have had good reason to have been fearful.

11 The real problem that I have is the issue of intent. The account given by the appellant taken at its bare essentials was one of seeking to avoid an accident. Once I have accepted the probability that the complainant did enter the road without seeing the Volvo prime mover it seems to me I must have a reasonable doubt about whether the appellant was seeking to avoid an accident.

12 In all the circumstances, the appropriate course for me is to recognise the reasonable doubt I have. The conviction will be quashed, the penalties imposed by the learned magistrate will be quashed, the period of disqualification imposed by the learned magistrate will be quashed. Court costs imposed by the learned magistrate, if there were any, will also be quashed.

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