Basile v Thickens
[2024] VSC 292
•5 June 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS
S ECI 2022 04422
| ADAM BASILE | Plaintiff |
| v | |
| BRENT THICKENS | First Defendant |
| - and - | |
| THE COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 May 2024 |
DATE OF JUDGMENT: | 5 June 2024 |
CASE MAY BE CITED AS: | Basile v Thickens |
MEDIUM NEUTRAL CITATION: | [2024] VSC 292 |
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JUDICIAL REVIEW – Traffic offences – Statutory defence of sudden or extraordinary emergency – Onus of proof on prosecution – County Court dismissing driver’s appeal from Magistrates’ Court conviction – Whether error of law on face of the record – Whether no evidence to support Judge’s findings – Proceeding dismissed – Crimes Act 1958 ss 322I, 322R; Road Safety Act 1986 s 64(1); Road Safety Rules 2017 r 20.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Billings with Ms D Dwyer | Denise Dwyer Lawyers |
| For the First Defendant | Mr G Buchhorn | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Second Defendant | No appearance | No appearance |
HIS HONOUR:
The plaintiff, Adam Basile, was charged with traffic offences arising out of an incident on 3 July 2017,[1] when he was detected travelling at 137km per hour in an 80km zone by a speed camera in Bangholme. The plaintiff contested the charges in the Magistrates’ Court at Dandenong but was convicted of dangerous driving, in contravention of s 64(1) of the Road Safety Act 1986 (the Road Safety Act). A charge of exceeding the speed limit in breach of r 20(3) of the Road Safety Road Rules 2017 (the Road Safety Rules) was withdrawn and struck out (the Magistrates’ Court Proceeding).
[1]The delay in this prosecution progressing through the courts was said to be due to delays caused by the COVID pandemic.
The plaintiff appealed his conviction to the County Court, where on 26 August 2022, he argued that his conduct was necessitated by reason of a sudden or extraordinary emergency, which would provide a defence under s 322R of the Crimes Act 1958 (the Crimes Act) (the County Court Proceeding). On 31 August 2022, the County Court judge rejected the plaintiff’s argument, and convicted him of the same offence of driving at a speed which was dangerous to the public in breach of s 64(1) of the Road Safety Act. The plaintiff was ordered to pay fines and statutory costs totalling $882.40, his licence was cancelled and he was disqualified from driving for a period of 12 months.
The plaintiff has no right of further appeal from the County Court’s orders, but commenced this proceeding seeking judicial review of the orders and ultimately argued that they were not supported by any evidence. He seeks orders quashing the County Court judgment[2] and orders, and directing the County Court to record that the original charges against him stand dismissed on appeal.
[2]The judgment was described in the County Court as a ruling.
Legislation
The following legislative provisions are relevant to the plaintiff’s conviction and this judicial review proceeding.
Road Safety Act 1986
Part 6—Offences and legal proceedings
…
64 Dangerous driving
(1) A person must not drive a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case.
Penalty: 120 penalty units or imprisonment for 12 months or both.
Road Safety Road Rules 2017
Part 3—Speed-limits
20 Obeying the speed-limit
…
(3) A driver of a vehicle other than a heavy vehicle must not drive at a speed which exceeds the speed-limit applying to the driver for the length of road where the driver is driving by 45 kilometres per hour or more.
Penalty: In the case of a natural person, 20 penalty units;
In the case of a body corporate, 120 penalty units.
Crimes Act 1958
Part IC—Self-defence, duress, sudden or extraordinary emergency and intoxication
Division 1—General
322G Application of Part
This Part applies to any offence, whether against any enactment or at common law.
…
322I Onus of proof
(1) The accused has the evidential onus of raising self-defence, duress or sudden or extraordinary emergency by presenting or pointing to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish self-defence, duress or sudden or extraordinary emergency (as the case may be).
(2) If the accused satisfies the evidential onus referred to in subsection (1), the prosecution has the legal onus of proving beyond reasonable doubt that the accused did not carry out the conduct in self-defence, under duress or in circumstances of sudden or extraordinary emergency (as the case may be).
…
Division 4—Sudden or extraordinary emergency
322R Sudden or extraordinary emergency
(1)A person is not guilty of an offence in respect of conduct that is carried out in circumstances of sudden or extraordinary emergency.
(2) This section applies if—
(a) the person reasonably believes that—
(i)circumstances of sudden or extraordinary emergency exist; and
(ii)the conduct is the only reasonable way to deal with the emergency; and
(b) the conduct is a reasonable response to the emergency.
(3)This section only applies in the case of murder if the person believes that the emergency involves a risk of death or really serious injury.
…
322S Abolition of necessity at common law
The defence at common law of necessity is abolished.
Background
At about 6:40am on 3 July 2017, while it was still dark, a blue Mitsubishi sedan being driven by the plaintiff to work was detected by a speed camera on Worsley Road, Bangholme, travelling at 137km per hour (the incident). Worsley Road had a designated speed limit of 80km per hour.
On 20 July 2017, the plaintiff attended an interview at Somerville Police Station with Leading Senior Constable Brent Thickens (LSC Thickens). The interview was not recorded, but LSC Thickens made contemporaneous notes during it. The plaintiff was subsequently charged with the following offences:
(a) exceeding the speed limit by 45km per hour or more, pursuant to r 20(3) of the Road Safety Road Rules 2017; and
(b) dangerous driving, pursuant to s 64(1) of the Road Safety Act 1986.
The charges as particularised alleged that the plaintiff’s speed at the time of the incident was 132km per hour.
The plaintiff commenced this judicial review proceeding on 31 October 2022.[3]
[3]The originating motion was amended on 16 December 2022 pursuant to orders of JR Keith and further amended on 6 May 2024 pursuant to orders of Ginnane J.
County Court Proceeding
The County Court appeal was a rehearing and LSC Thickens and the plaintiff gave evidence.
LSC Thickens’ notes of his interview with the plaintiff were tendered as evidence. They recorded that the plaintiff gave the following account of the incident:
I was only about 5-10 minutes from work
The car in front of me was only doing 70. I pulled out to overtake. It wasn't until I pulled out there were several cars, so I put my foot down to get past them as I wasn't able to get back in. I don't normally do those speeds.[4]
[4]County Court Reasons [15] (‘Reasons’).
The notes recorded that the plaintiff stated that he did not have any justified reason for travelling 52km per hour above the speed limit, which he described as a "really bad error in judgement”,[5] and that he did not have anything further to add in response to the charges at the time.
[5]Reasons [16].
LSC Thickens gave evidence at the County Court appeal hearing consistent with his notes, which he stated were reflective of the entirety of his conversation with the plaintiff on 20 July 2017.
The plaintiff put to LSC Thickens in cross-examination that in the interview he had given additional information regarding the incident which the notes did not record, the content of which I set out in the following paragraphs 13 to 19. LSC Thickens did not accept that the plaintiff provided him with this information.[6]
[6]Ibid[17]-[21].
During the County Court appeal hearing the plaintiff conceded that he had been driving the Mitsubishi sedan at the time of the incident, that the speed limit had been 80km per hour, and that he had driven at the alleged speed of 132km. The primary issue for her Honour to decide was whether the prosecution had proved beyond reasonable doubt that the plaintiff’s conduct had been carried out in circumstances of sudden or extraordinary emergency so as to provide a defence under s 322R of the Crimes Act.
In her judgment, her Honour recorded that the plaintiff gave evidence that at the time of the incident, he was travelling to work in his brother’s Mitsubishi sedan. He had ‘come off’ the Frankston Freeway, driven onto Thompson Road and then onto Worsley Road. It was 6:44am and totally dark. Immediately prior to the incident, he had been travelling at just below the speed limit of 80km per hour, with a number of vehicles travelling behind him.
The plaintiff described how he caught up with the vehicle in front of him, a light truck, which was travelling at a slower speed of between 65 and 75km per hour. He positioned his vehicle behind the truck for approximately 30 seconds before deciding to overtake because of the truck’s speed and because he did not like to have his view obscured.[7] He said that he pulled out to see if there was space to overtake the truck and decided that it was safe to do so.[8]
[7]Ibid [24]-[25].
[8]Ibid [25].
However, while the plaintiff was passing the truck, he noticed that it started to speed up and the cars that were behind him had moved up and thereby reduced the gap. The plaintiff thought it was better to abort the overtaking manoeuvre.[9] He decelerated and dropped back and indicated his intention to pull in behind the truck, but by then the cars behind him had closed the gap and that the truck did not seem to slow down to let him back in.[10]
[9]Ibid [26].
[10]Ibid [29].
The plaintiff said that he panicked, given that he was on the wrong side of the road and there was a long stream of traffic behind.[11] He said that he saw the lights of an oncoming car and thought that he might cause an accident.[12] He was unable to pull over the vehicle because of the narrow width of the roadway and the presence of a ditch.[13] The road was bounded by an Armco barrier which ran for approximately 150 metres.
[11]Ibid [26].
[12]Ibid.
[13]Ibid.
He felt an adrenaline surge and determined that the only way out and ‘get through, was to accelerate hard and pass the truck and then pull back into the northbound lane’. He knew that he had a small window of opportunity to get safely back in.[14] He felt that he was in mortal danger and thought that he could cause a collision or a fatality, so the only option was to accelerate.[15]
[14]Ibid[27].
[15]Ibid [28].
He was unable to pull over to a gravel shoulder of about a metre and a half in area on the other side of the road, next to the southbound lane, along the east side of Worsley Road.[16] The shoulder was at the end of the Armco barrier and was next to a large ditch which ran the length of Worsley Road.
[16]Ibid [33] and Court Book 318 (‘CB’) (County Court Transcript 26).
The plaintiff accepted that he was travelling 132km per hour in the oncoming lane, but said that his conduct in reaching that speed was the only reasonable reaction to the circumstances and that he had weighed up all the other options. He gave evidence that he was about 200 metres past the Armco barrier when he moved back into his lane. The oncoming vehicle passed him about 20 or 30 seconds later.
The plaintiff was shown photographs of the incident location during his evidence and used them to describe the location of his vehicle at relevant times.
County Court Judgment
The County Court Judge accepted that the plaintiff had adduced evidence which suggested a reasonable possibility of the existence of facts, that, if they existed, would establish the defence of sudden or extraordinary emergency available under s 322R of the Crimes Act. Her Honour noted the difference between LSC Thickens’ and the plaintiff’s evidence about the incident and what was said at the interview on 20 July 2017. However, proceeding on the basis of the plaintiff’s account of the incident, her Honour described the elements of the defence which the prosecution had the legal onus of disproving beyond reasonable doubt as:
… firstly, the [plaintiff]:
did not reasonably believe that circumstances of sudden or extraordinary emergency existed; and
did not reasonably believe that the conduct was the only reasonable way to deal with the emergency; and
secondly that the conduct was not a reasonable response to the emergency.[17]
[17]Ibid [55].
Ultimately, her Honour held that the prosecution had discharged the evidentiary burden of disproving the plaintiff’s defence beyond reasonable doubt, and that:
(a) accepting that the plaintiff reasonably believed that circumstances of sudden or extraordinary emergency existed at the time of the incident, he did not hold the reasonable belief that his conduct was the only reasonable way to deal with the emergency; and
(b) the plaintiff’s conduct was not a reasonable response to the emergency.[18]
[18]Ibid [60]-[61].
Her Honour explained why the prosecution had proved beyond reasonable doubt that the plaintiff did not hold a reasonable belief that his conduct was the only reasonable way to deal with the emergency, stating:
Accepting for these purposes that as a consequence of Mr. Basile being on the wrong side of the road, and seeing oncoming headlights, he reasonably believed that circumstances of sudden or extraordinary emergency existed, it doesn't follow that he reasonably believed that his conduct in accelerating towards the oncoming vehicle was the only reasonable way to deal with the emergency. Bearing in mind that this is a subjective test, I have difficulty accepting that the appellant himself reasonably believed this was the only reasonable way to deal with the emergency. Mr. Basile would have been aware that there were other options available to him that did not necessitate him driving to up to 132km per hour, speeding toward the approaching danger. He would have been aware that he could have slowed down, pulled the car to the side of the road after he had passed the Armco barrier, where there was no ditch. In any event, whatever threat that existed had been materially exacerbated by the appellant's decision to accelerate.[19]
[19]Ibid [59].
Her Honour explained why she considered that the prosecution had proved beyond reasonable doubt that the plaintiff’s conduct was not a reasonable response to the emergency in the following passage:
… Having found himself in the position of being on the wrong side of the road, unable to overtake the vehicle and with an approaching south bound vehicle, Mr. Basile’s conduct in accelerating to 52km per hour over the speed limit in the dark on a road like this, thus narrowing the gap to the oncoming traffic and in effect increasing the level of danger posed, (not to mention the heightened danger associated with travelling at a speed of 132km per hour towards an oncoming vehicle); was not a reasonable response to the emergency. There were a number of available alternatives. A reasonable response would have been to slow down and attempt to re-enter the northbound lane, or to stop the vehicle after the Armco barrier. A reasonable response was not to exceed the speed limit, as Mr. Basile did, and increase the risk of a collision with an oncoming vehicle.
…
Here, there were alternative courses of action which did not involve a breach of the law. The breach here was not, in practical terms unavoidable. Nor did “the circumstances overwhelmingly impel disobedience to the law.”[20]
[20]Ibid [61], [63].
Judicial Review Grounds
The plaintiff’s further amended Originating Motion contains three grounds:
(a) That the second named defendant [presumably the County Court judge] (i) denied the Plaintiff procedural fairness and/or (ii) natural justice and/or (iii) refused to exercise a jurisdiction that she had and/or (iv) exercised a jurisdiction that she did not have and/or (v) erred at law and/or (vi) there was error of law on the face of the record in convicting the Plaintiff of an offence under section 64 (1) of the Road Safety Act 1986 and finding a charge under Rule 20 of the Road Safety Road Rules 2017 proven in holding that:
(i) insofar that in assessing the defence provided by s 322R of the Crimes Act 1958 the learned Judge erred in holding under the circumstances that the Plaintiff did not hold such reasonable belief that his conduct was the only reasonable way to deal with the emergency and in so holding the learned Judge fell into error; and/or
(ii) the learned Judge erred in holding that the response by the Plaintiff under the circumstances was not a reasonable response to the emergency and in so holding the learned Judge fell into error; and/or
(iii) where under the circumstances the evidence did not support the charge(s) alleged and whereas particulars will be supplied prior to trial;
(iv) the learned Judge erred in making findings on which Her Honour’s Orders made on 31 August 2022 were based which were not supported by any evidence.
(b)That the second named defendant… erred in law in refusing to allow the appeal and dismiss a charge under Rule 20 of the Road Safety Road Rules 2017 brought against the Plaintiff.
(c)That the second named defendant… erred in law in refusing to allow the appeal and dismiss a charge under s 64(1) of the Road Safety Act 1986 brought against the Plaintiff.
Ultimately, the plaintiff’s case was based on the ground, that there was no evidence to support her Honour’s findings.[21] I gave him leave to add a ground making his reliance on that argument clear. To the extent that the plaintiff continued to rely on other grounds that were not the subject of any detailed submission and were not established. In his written submissions, the plaintiff argued that her Honour’s findings on matters concerning the elements of the s 322R defence were not open on the evidence and ‘were not open to a reasonable judge directing herself in accordance with the evidence in regard to satisfaction beyond a reasonable doubt’.[22] However, as I explain below, the ‘no evidence’ ground in a judicial review application is a stricter, or narrower ground than the plaintiff’s submission would suggest.
[21]Transcript of Proceedings, Basile v Thickens (Supreme Court of Victoria, S ECI 2022 04422, Ginnane J 3 May 2024) (‘T’), 28 L29; T 30 L 14.
[22]Plaintiff’s written submissions [16], [21].
Parties’ Submissions
The plaintiff relied on the fact that her Honour did not expressly state that she accepted the plaintiff’s or LSC Thickens’ account of the interview on 20 July 2017. However, her Honour considered and determined the plaintiff’s appeal on the basis of accepting his account of the incident.
The plaintiff’s main oral submission was that her Honour had erred in reaching conclusions and making orders which were not based on any evidence or supporting material, but which appeared to be based on conjecture and speculation.
He argued that her Honour was not able to conclude beyond reasonable doubt that the prosecution had disproved the elements of his defence of sudden or extraordinary emergency when there was no direct evidence presented in opposition to his evidence.
The plaintiff also argued that her Honour’s finding that he could have slowed down and returned to the left-hand lane upon seeing the headlights of the oncoming car were not open on the evidence, as he had given uncontested evidence that the gap behind the truck had been filled by vehicles. Nor was her Honour’s finding that the plaintiff could have pulled over onto the shoulder on the right hand side of the road open because his uncontradicted evidence was that the narrow size of the shoulder, of a metre to a metre and a half, made that course not possible.[23]
[23]CB 318, 321, 328-9 (County Court Transcript 26, 29, 36-7).
The prosecution submitted that the evidence permitted her Honour to find that:
(a) the plaintiff did not reasonably believe his conduct was a reasonable response to the sudden or extraordinary emergency; and
(b) the plaintiff’s response was not objectively reasonable in the circumstances.
The prosecution argued that whilst the plaintiff’s evidence was uncontradicted, her Honour was not obliged to accept it. It was open to her Honour to conclude on the evidence that the plaintiff’s belief that his conduct in overtaking the truck was not the only reasonable way to deal with the emergency given:
(a) the plaintiff could have slowed down to enable all cars in the left-hand lane to pass him before returning to that lane, even if he could not return to the exact position he had been in before attempting the overtaking manoeuvre;
(b) the plaintiff could have pulled over to the right side of the road after the Armco barrier, noting he had given evidence that he travelled a further 200 metres in the wrong lane before returning to the correct lane, and passed the oncoming car about 20 to 30 seconds later; and
(c) the plaintiff could have slowed down and moved his car off to the far right-hand side of the road after the Armco barrier, as there was no ditch at that point.
Next, the prosecution submitted that it was also open to her Honour to conclude that the plaintiff’s conduct was not an objectively reasonable response to the perceived emergency situation, given that:
(a) there was sufficient time for the plaintiff to slow down or stop and attempt to re-enter the left-hand lane; and
(b) after passing the Armco barrier, the plaintiff could have slowed down and stopped his car on the right-hand side of the road until it was safe for him to return to the left-hand lane.
The prosecution referred to the principle that a judge will not err in law in making findings of fact if they are supported even by a scintilla of evidence, and even though a different judge may not have made those findings.
The prosecution submitted that her Honour made no jurisdictional error, as she had made findings of fact about the incident based on the evidence before her. Whilst the only direct evidence of the incident was the plaintiff’s, her Honour was not obliged to accept it. She was entitled to reject it, or give it little weight, if she found it inherently improbable or implausible, or that it contained inconsistencies or contradictions.
Her Honour was entitled to make a finding that the plaintiff could have slowed down and waited for the other cars to pass before moving back into to the left-hand lane, in view of his evidence that 20 to 30 seconds elapsed after he had overtaken the truck before the oncoming vehicle passed him. Her Honour was entitled to conclude that the course of action he did take was not reasonable.
The photos of the gravel shoulder entitled her Honour to judge for herself whether it was wide enough for a car to stop on. The Judge was entitled to bring her own experience of human affairs and common sense to making findings of fact in what was a circumstantial case after considering the evidence as a whole.
Analysis
The County Court has jurisdiction to hear and determine appeals against convictions and sentences by the Magistrates’ Court.[24] That is the jurisdiction that her Honour exercised. The plaintiff has not established that her Honour made any jurisdictional error in deciding the appeal.
[24]Section 53A of the County Court Act 1958 and Part 6.1 of the Criminal Procedure Act 2009.
But a separate question raised by the plaintiff’s case is whether her Honour made a material error of law on the face of the record. The record includes the documents that initiate the proceeding, the reasons for judgment[25] and the orders. Reference can also be made to the County Court transcript to the extent that it is necessary to enable understanding of the Judge’s reasons.[26] Her Honour referred extensively to the evidence and the parties referred in this Court to the transcript of that evidence. When dealing with a no evidence submission, the Court must be aware of the evidence that was before the primary judge.
[25]Administrative Law Act 1978 s 10.
[26]Easwaralingam v Director of Public Prosecutions (2010) 208 A Crim R 122 at 127 [22].
One category of error of law on the face of the record occurs if a judge’s findings on material matters of fact are not based on, or supported, by any evidence. This ‘no evidence’ ground was described by the High Court in Kostas v HIA Insurances Services Pty Ltd[27] as follows:
A tribunal that decides a question of fact when there is ‘no evidence’ in support of that finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law.
[27](2010) 241 CLR 390 at 418 [91] (emphasis in original).
In Australian Broadcasting Tribunal v Bond[28] Mason CJ stated:
So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law.
[28](1990) 170 CLR 321 at 355 to 356.
However, no error of law is made where there is ‘some basis’ for the finding or decision and the basis can be a ‘little’, a ‘scintilla’ or a ‘skerrick’ of probative evidence.[29] A judge is not required to accept uncontradicted evidence when, for instance, it is implausible or unlikely.[30]
[29]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 at 408 [17] and M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed 2022) 235-6.
[30]Rees v County Court of Victoria (2011) 34 VAR 250, 267 [38].
Section 322R of the Crimes Act and its predecessor were introduced to codify the common law of law of necessity and to provide that the statutory defence of ‘sudden or extraordinary emergency’ applies to all offences. But the common law defence of necessity to criminal offences was only available in rare and exceptional cases. Her Honour referred to the discussion of the common law defence of necessity in R v Loughnan[31] and in R v Rogers.[32] In the latter case, Gleeson CJ stated:
The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.
This is why, historically, it has been regarded as important to seek to limit the scope of the defence by referring to requirements such as urgency and immediacy... [33]
[31][1981] VR 443.
[32](1996) 86 A Crim R 542. See also Bailey v Police (SA) (2007) 99 SASR 413.
[33]Ibid 546-7.
Her Honour found that, in light of the concessions made on behalf of the plaintiff, there seemed to be little dispute that the elements of the charges could be made out. Thus, the plaintiff had admitted that he was the driver of the relevant vehicle and the place of the alleged offending and did not take issue with the speed alleged, nor that the designated speed limit was 80km per hour.[34] She found that each element of the charges had been proved beyond reasonable doubt.
[34]Reasons [11].
Her Honour noted that plaintiff’s account of the incident as recorded by LSC Thickens differed from the evidence that he gave in court.[35] In particular, there was no reference to a truck or light vehicle in the plaintiff’s account to LSC Thickens. She stated that even if she accepted the plaintiff’s evidence regarding the circumstances of the offending, it would not be determinative of the question of the reasonableness of his belief in the existence of a sudden or extraordinary emergency and of whether his conduct was the only reasonable way to deal with the emergency.[36] Her Honour accepted that for ‘these purposes that as a consequence of Mr Basile being on the wrong side of the road, and seeing oncoming headlights, he reasonably believed that circumstances of sudden or extraordinary emergency existed’.[37] However, her Honour added that it did not follow that he reasonably believed that his conduct in accelerating towards the oncoming vehicle was the only reasonable way to deal with the emergency.[38]
[35]Ibid [52].
[36]Ibid [54].
[37]Ibid [59].
[38]Ibid.
Her Honour found that there was nothing unlawful in the plaintiff overtaking by pulling ‘out into the southbound lane of Worsley Road in an effort to overtake a vehicle which was travelling at varying speeds of between 65 and 75km per hour’. Her Honour stated:
That the vehicle was said to have changed its speed (accelerating and then decelerating) might ordinarily have given rise to a degree of caution before attempting to overtake. Mr Basile was well familiar with the road, having travelled this way to work regularly. He would have been aware of the risks of overtaking on that road. Regardless of this, it is not alleged, nor do I find, there was anything unlawful in Mr Basile overtaking in this manner.[39]
[39]Ibid [56].
The sudden or extraordinary emergency defence provided by s 322R contains three elements, which are joined by the conjunction ‘and’. If the primary judge found that the prosecution proved beyond reasonable doubt that any of the three elements did not exist, then the primary judge was obliged to reject the defence. The three elements are:
(a) that the person reasonably believes that circumstances of sudden or extraordinary emergency exist (s 322R(2)(a)(i)), the first element;
(b) that the person reasonably believes that the conduct is the only reasonable way to deal with the emergency (s 322R(2)(a)(ii)), the second element;
(c) that the conduct is a reasonable response to the emergency (s 322R(2)(b)), the third element.
Her Honour referred to a judgment under the Criminal Code (Cth)[40] and considered that the first element of the s 322R defence required a subjective belief by the accused and that the circumstances of sudden or extraordinary emergency existed and that the subjective belief had to be reasonable.[41]
[40]Ajayi v The Queen (2012) 221 A Crim R 148.
[41]Reasons [50].
Her Honour found that the plaintiff, who bore the evidential burden, had pointed to evidence which suggested a reasonable possibility of the existence of facts that, if they existed, would establish a sudden or extraordinary emergency. The legal onus then fell on the prosecution to prove beyond reasonable doubt that the plaintiff did not carry out the conduct in circumstances of sudden or extraordinary emergency, which included the three elements.[42] Her Honour’s reasons indicate that she found that circumstances of a sudden or extraordinary emergency existed even though she did not expressly so state. This appears from the following passage:
Accepting for these purposes that as a consequence of Mr Basile being on the wrong side of the road, and seeing oncoming headlights, he reasonably believed that circumstances of sudden or extraordinary emergency existed…[43]
Her Honour therefore accepted for the purposes of deciding the appeal, that the first element of the defence in s 322R was established.
[42]Ibid [35], [49].
[43]Ibid [59].
Her Honour’s finding regarding the second element of the defence in s 322R was that the prosecution had established, to the requisite standard of proof, that the plaintiff did not reasonably believe that his conduct was the only reasonable way to deal with the emergency. Her Honour considered that this element contained a subjective test, but an objective element in the reasonable belief required. Her Honour stated that she had ‘difficulty accepting that the appellant himself reasonably believed this was the only reasonable way to deal with the emergency’.[44] Her Honour found that the plaintiff would have been aware that he had other available options ‘that did not necessitate him driving up to 132km per hour, speeding towards the approaching danger’.[45] These options were slowing down and attempting to re-enter the northbound lane, or stopping his car on the shoulder of the eastern side of the road after he had passed the Armco barrier, where there was no ditch.[46] Her Honour observed that, in any event, whatever threat existed had been materially exacerbated by the plaintiff’s decision to accelerate.[47]
[44]Ibid.
[45]Ibid.
[46]Ibid.
[47]Ibid.
With respect, in my opinion there was no evidence to support her Honour’s findings of fact about the options available to the plaintiff on which she based her conclusion in respect of the second element of the s 322R defence. The only relevant evidence was that the plaintiff had been unable to re-enter the line of traffic because the vehicles behind the truck had closed the gap. He was not cross-examined on that evidence. While it may be difficult to challenge or contradict a person’s evidence about their state of mind, witnesses are often cross-examined to suggest that their claim about their state of mind is not credible. That did not occur in this case. Nor was it suggested to the plaintiff that he had sufficient time to slow down to enable all cars in the northbound lane to pass him before returning to that lane. While, the primary judge was not obliged to accept his evidence, the positive findings that she made had to be supported by some evidence, and in the case of these findings, they were not. Her Honour did not reject the plaintiff’s account of what had occurred, although she pointed to its differences to the account of the incident contained in LSC Thickens’ notes of the interview of 20 July 2017.
I reach a similar conclusion about her Honour’s finding about the other option that she considered was available to the plaintiff. That was to stop his vehicle on the gravel shoulder on the right or eastern side of Worsley Road, after the end of the Armco barrier, which was shown in photograph 4. The plaintiff gave evidence that the shoulder was a gravel area of a metre to a metre and a half with a ditch next to it and that that the gravel would have caused a loss of traction.[48] He said that he could not have pulled over onto the shoulder.[49] Photo 4 did not on its face show a ditch, but the plaintiff’s evidence that the ditch ran the length of Worsley Road was not the subject of cross-examination and there was no other evidence. In addition, the plaintiff’s knowledge of the road was gained from driving along it every work day. Her Honour did not explain why pulling his vehicle over onto the shoulder was an option available him.
[48]CB 329 (County Court Transcript 37).
[49]CB 318 (County Court Transcript 26).
Therefore, I do consider that there was no evidence to support her Honour’s findings concerning the second element and that her finding in that regard contained an error of law.
However, I reach a different conclusion in respect of the third element of the s 322R defence, which was whether the plaintiff’s conduct was a reasonable response to the emergency. In my opinion, the primary judge’s finding that she was satisfied that the prosecution had proved beyond reasonable doubt that the plaintiff’s conduct was not a reasonable response to the emergency was supported by evidence and did not contain an error of law. Whether the plaintiff’s conduct was a reasonable response to an emergency was to be assessed objectively. The proportionality of the response is relevant. Thus in Re White[50] a motorist travelling at 88km per hour in a 60km zone to get his gravely ill son to hospital was considered able to rely on the common law defence of necessity.
[50](1989) 9 NSWLR 427 (District Court of New South Wales).
Her Honour referred to five facts on which, when considered collectively, it was open to her to be satisfied beyond reasonable doubt that the plaintiff’s conduct was not a reasonable response to the emergency. I have numbered these facts (1)-(5) in the following passage from her Honour’s judgment:
Mr Basile’s conduct (1) in accelerating to 52 km per hour over the speed limit (2) in the dark on a road like this, (3) thus narrowing the gap to the oncoming traffic and (4) in effect increasing the level of danger posed, (5) not to mention the heightened danger associated with travelling at a speed of 132km per hour towards an oncoming vehicle; was not a reasonable response to the emergency.[51]
[51]Reasons [61].
Her Honour continued:
There were a number of available alternatives. A reasonable response would have been to slow down and attempt to re-enter the northbound lane, or to stop the vehicle after the Armco barrier. A reasonable response was not to exceed the speed limit, as Mr Basile did, and increase the risk of collision with an oncoming vehicle.[52]
[52]Ibid.
Her Honour concluded this section of her judgment by stating:
…Here, there were alternative courses of action which did not involve a breach of the law. The breach here was not, in practical terms, unavoidable. Nor did ‘the circumstances overwhelmingly impel disobedience to the law’.[53]
[53]Ibid [63].
The plaintiff first saw the oncoming vehicle when it was still some distance away and realised that ‘he was in trouble and couldn’t drop back’.[54] Her Honour was also entitled to rely on the plaintiff’s evidence that he was about 200 metres past the Armco barrier when he moved back into the northbound lane and then about 20 to 30 seconds elapsed before the oncoming vehicle passed him.[55] As the prosecution contended, her Honour accepted, or was entitled to make findings on the basis, that the plaintiff travelled at least 400 metres in the wrong lane towards the oncoming vehicle before returning to his correct northbound lane and then did not pass the oncoming vehicle for another 20 to 30 seconds.[56] The 400 metres consisted of 50 metres before he reached the Armco barrier, the 150 metres length of the Armco barrier, and the 200 metres after it.[57]
[54]Ibid [58].
[55]Ibid [33].
[56]Ibid.
[57]Ibid [27], [29], [33].
Her Honour found that plaintiff had a reasonable distance in which he could have slowed down and attempted to re-enter the northbound lane.[58]
[58]Ibid [58].
In my opinion, it is particularly important in considering the third element of s 322R that the plaintiff accelerated to 132km to overtake the truck, which was travelling at varying speeds of between 65 and 75km per hour. He appeared to attribute his excessive speed to panicking or a surge of adrenaline. Her Honour referred to this evidence and that he determined that the only way he could ‘get through’ was to ‘accelerate hard and get past’ and then pull back into his correct lane and that he knew that there was small window of opportunity to do so.[59] Her Honour stated that a reasonable response to the sudden emergency:
[w]as not to exceed the speed limit, as Mr Basile did, and increase the risk of a collision with an oncoming vehicle.[60]
[59]Ibid [27].
[60]Ibid [61].
Regardless of whether the plaintiff could have slowed down to re-enter the northbound lane or pulled over onto the gravel shoulder, it was open to her Honour to find that accelerating to a speed 52km above the speed limit was not a reasonable response to the emergency and that the prosecution had proved beyond reasonable doubt that the third element of the defence did not exist. Her Honour made such a finding in the passage of her judgment setting out the five facts, which I have quoted above. While there was some evidence that about three vehicles were in front of the truck at the time of the incident,[61] there was no evidence that the plaintiff needed to drive at 132km in order to overtake them, or that accelerating to a speed 52km above the speed limit was necessary to reach a point where he could re-enter the northbound lane. As her Honour stated, by exceeding the speed limit as he did, the plaintiff increased the risk of a collision with an oncoming vehicle.
[61]CB 318 (County Court Transcript 26).
In my opinion, there was evidence before her Honour on which she could find that the plaintiff’s conduct in travelling at such an excessive speed, a point to which she made reference, was not a reasonable response to the sudden or extraordinary emergency. The sudden or extraordinary emergency that he faced did not justify accelerating to 132km per hour, when the circumstances are viewed objectively.
Her Honour was entitled to find that the prosecution had proved beyond reasonable that the third element of the s 322R defence did not apply to the plaintiff’s conduct. Her finding on this element is not affected by her comments that the plaintiff had other options available to him, as her finding was supported by the five facts that I have quoted above, particularly the very fast speed to which the plaintiff accelerated. As a result, the s 322R defence was not available to the plaintiff, because its availability depended on all three elements applying to his conduct. The prosecution proved beyond reasonable doubt that the third element did not apply.
It is not the Court’s functions on a judicial review application to make its own decision on the facts, or to express an opinion on whether it would have made the same decision as the primary judge. Judicial review does not provide a general appeal for error of law.[62] Its role, in the present case, was to permit argument as to whether there was any evidence to support the primary judge’s findings and conclusion.
[62]Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 577.
For those reasons, I consider that there was evidence to support her Honour’s conclusion that the defence under s 322R did not apply. The error of law concerning element two did not invalidate her Honour’s orders and was not a material error of law,[63] because her finding concerning element three has not been impugned and was sufficient, by itself, to render the defence in s 322R not applicable.
[63]LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 [16], [32].
The proceeding must be dismissed.
Costs
The usual order is that costs follow the event, as this proceeding is brought in the Court’s civil jurisdiction. I heard submissions about costs at the end of the principal submissions and the parties accepted that that principle applied in this case.[64] The proceeding has been unsuccessful, despite the fact that I have found that her Honour erred in one respect. As costs follow the event, the plaintiff must pay the first defendant’s costs of the proceeding on a standard basis.
[64]T 65-66.
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