Bayer v Police
[2021] SASC 86
•9 July 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
BAYER v POLICE
[2021] SASC 86
Judgment of the Honourable Justice Peek
9 July 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against conviction and sentence after trial by Magistrate.
The appellant was charged in Count 1 with “Causing harm (to Mr Taylor) by use of a vehicle” contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (the CLC Act) and charged in Count 2 with “Leaving an accident scene after causing harm by careless use of a vehicle” contrary to s 19AB(2) of the CLC Act. The Magistrate convicted of both offences.
1. As to Count 1, the police prosecutor at trial, particularised the driving as “recklessly” as distinct from “at a speed dangerous” or “in a manner dangerous” as is usually done. Under the South Australian legislation, if such a charge is particularised as “driving recklessly” only, it is an essential element that the defendant subjectively advert to risk and proceed regardless. Kane v Dureau [1911] VLR 293; Thompson v Copeland [1936] SASR 45; R v Coventry (1938) 59 CLR 633; Taylor v Police [1998] SASC S6540 (4 February 1998) discussed.
2.Any driving the subject of a charge against s 19A(3) of the CLC Act is to be assessed by reference to a reasonable man in the position of the appellant. Having regard to all of the circumstances, including the aggressive and distracting nature of Mr Taylor’s actions, Count 1 was not proven whether analysis of the evidence proceeded by reference to “reckless driving” or by reference to the more usual charge of “driving in a manner dangerous”. R v Duncan (1975) 11 SASR 592; McBride v The Queen (1966) 115 CLR 44; Pope v Hall (1982) 30 SASR 78; R v Kamleh (1990) A Crim R 435; R v Duryea (2008) 103 SASR 70 discussed.
3. The statutory alternative charge on Count 1 of Careless Driving contrary to s 45 of the Road Traffic Act 1961 was proven. The conviction, sentence and the order for disqualification of driver's licence imposed on Count 1 are set aside and a conviction of Careless Driving is substituted. The appellant is to enter into a bond to be of good behaviour for a period of one year, commencing from today’s date, in the amount of $500.
4. As to Count 2, the appellant asserted a defence pursuant to s 43(3)(b)(3) of the Road Traffic Act 1961 that he had genuinely believed on reasonable grounds that compliance with subsection (1)(a) would endanger his physical safety. The Magistrate found the charge proven but the cumulative effect of his Honour's directions concerning the defence were such as to suggest that he had approached the defence incorrectly and the conviction is set aside.
5.In all of the circumstances, it would be unduly oppressive upon the appellant to re-try Count 2 and Count 2 is dismissed without re-trial.
Criminal Law Consolidation Act 1935 (SA) ss 19A, 19AB; Road Traffic Act 1961 (SA) ss 43, 45, 168; Crimes Act 1900 (NSW) s 52A, referred to.
Giudice v Legal Profession Complaints Committee [2014] WASCA 115; Kane v Dureau [1911] VLR 293; McBride v The Queen (1966) 115 CLR 44; Pope v Hall (1982) 30 SASR 78; R v Coventry (1938) 59 CLR 633; R v Duncan (1975) 11 SASR 592; R v Duryea (2008) 103 SASR 70; R v Kamleh (1990) 51 A Crim R 435; Taylor v Police [1998] SASC S6540; Thompson v Copeland [1936] SASR 45, discussed.
Dunjey v Cross [2002] WASCA 14; King v The Queen (2012) 245 CLR 588; Steen v The Queen (2020) 135 SASR 554; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, considered.
BAYER v POLICE
[2021] SASC 86
Magistrates Appeal - Criminal
PEEK J: Appeal against convictions of driving charges.
The charges and the penalties imposed
The appellant, Mr Christopher Geoffrey Bayer (Bayer), stood trial before a Magistrate on two charges arising from a collision between his vehicle and the person of Mr Shaun Adrian Taylor (Taylor) who was on foot on the roadway at the time. The Information originally charged three charges as follows:
1.On the 28th day of June 2019 at ELIZABETH VALE in the said State, drove a motor vehicle in a culpably negligent manner, or recklessly, or at a speed or in a manner which was dangerous to any person, and by that culpable negligence, recklessness or other conduct, caused harm[1] to Shaun Adrian TAYLOR.
Section 19A(3) of the Criminal Law Consolidation Act, 1935.
This is a basic offence.
This is a Minor indictable offence.
2.On the 28th day of June 2019 at ELIZABETH VALE in the said State, drove a vehicle without due care or attention that caused physical harm to another, failed to satisfy the statutory obligations of a driver of a vehicle in relation to the incident.
Section 19AB(2) of the Criminal Law Consolidation Act, 1935.
This is a Minor indictable offence.
3.On the 28th day of June 2019 at ELIZABETH VALE in the said State, drove a vehicle namely a motor vehicle registration number [redacted] on a road namely John Rice Avenue in a manner which was dangerous to any person.
Section 46 of the Road Traffic Act 1961.
This is a summary offence.
[1] Count 1 originally charged “serious harm” but was downgraded to “harm” simpliciter.
Count 3 was originally charged in the alternative to Count 1. However, at the commencement of the trial, Count 3 was “withdrawn by consent” and pleas of “Not Guilty” were taken only on Counts 1 and 2.
Bayer was convicted of both counts. The Magistrate later imposed one sentence for both offences of six months imprisonment, suspended upon entry into a bond to be of good behaviour and disqualified the defendant from driving for a period of one year on each offence, such periods to run concurrently. Bayer now appeals against conviction and sentence on both counts.
The grounds of appeal were couched in terms of the findings of guilt being unreasonable and not supported by the evidence. However, they were generously interpreted and the appellant was permitted to broaden his argument without formally amending the grounds. The parties were permitted to supply further written submissions on a number of topics and both parties supplied them after judgment was reserved.
An overview of the disposition of this appeal
Count 1 involved an assessment of the nature of Bayer’s driving immediately prior to the moment of the impact of his red Holden Commodore sedan (the Commodore) with the body of Taylor. On appeal, that inquiry largely distils to three questions: did the evidence establish that the driving was “reckless” (as Count 1 was particularised by the prosecution) or only establish the lesser statutory alternative charge of Careless Driving contrary to s 45 of the Road Traffic Act 1961 (RTA s 45 Careless Driving) or did not establish even the latter charge?
I foreshadow that my conclusion is that the evidence did not establish that the driving was “reckless” as particularised by the prosecution (or for that matter, that it was driving “in a manner dangerous” had the charge been particularised in that way at trial). However, I do find that it did establish that the appellant was guilty of the lesser statutory alternative charge of Careless Driving contrary to RTA s 45. Accordingly, the conviction and sentence on Count 1 will be set aside; a conviction of the alternative charge of RTA s 45 Careless Driving will be substituted; and Bayer will be resentenced on that alternative charge.
Count 2, on the other hand, stands rather differently. It involved inter alia an assessment of whether the defence in RTA s 43(3)(b)(i) (the s 43 defence) was proved by the defendant on the balance of probabilities. This in turn involved consideration of various evidential matters (including a number of exculpatory statements made by the appellant). While ultimate findings that the prosecution case was established and that the s 43 defence was not proved by the defendant may have been open on all of the evidence, I consider that the cumulative effect of a number of statements by the Magistrate in his reasons is such that his Honour’s finding that the defence was not proven must be set aside. The consequence would usually be that the conviction on Count 2 would be set aside and that Count 2 would be remitted to a different Magistrate for re-trial. However, in all of the circumstances of this quite unusual case, I consider that such a process would be unduly oppressive on Bayer and that justice will be served by setting aside the guilty finding on Count 2 with no order for a re-trial of that count.
The above matters will now be considered in further detail.
A summary of the salient facts
The incident the subject of the charges (the subject collision) occurred at about 11.00 am on 28 June 2019 when Bayer was driving his Commodore in a forward direction on John Rice Avenue (at its intersection with Haydown Road) in the right lane of the two lanes for travel in that forward direction. At that time, he collided with Taylor who was then on foot on the roadway, adjacent to his black Holden Colorado 4WD (the Colorado) which was stationary in the right lane of those two lanes.
I make clear, as did both the prosecution and the Magistrate, that there has never been any suggestion that this impact was in any way deliberate; it was an unfortunate accident.
Bayer and Taylor were strangers. Prior to the subject collision, each had been driving in his respective motor vehicle in the Elizabeth Vale area. Each was to later complain of the other’s driving at the time but none of such driving formed the basis of any charge against either person.
Taylor was the main prosecution witness at trial. His evidence was unclear in a number of ways and he claimed that the subject collision had affected his memory. In short, his version was that when he was driving on Main North Road, Bayer had been travelling in the same direction as him in a different lane but had “cut him off” by entering his lane only a short distance ahead of him, thus causing him to brake; and that thereafter, Bayer was travelling too slowly having regard to the conditions and the 80 kph speed limit. With reluctance, he admitted that matters had culminated in him driving the Colorado (which was fitted with a front “nudge bar”) into the rear of the Commodore. Thereafter, he passed the Commodore and had travelled well ahead of it until he later saw it approaching from his rear as he was stationary at the intersection of John Rice Avenue and Haydown Road, in the right lane of the two lanes for his direction of travel. He then got out of the stationary Colorado to confront Bayer but, in circumstances as to which his memory was poor, he was very shortly thereafter hit by the Commodore. As to this, the Magistrate observed in his judgment:
28. Mr Taylor’s evidence was not overly crucial in this matter. Whilst that may seem an unusual statement to make in a trial proceeding, this is because the events leading up to the collision and the collision itself are all captured on the video evidence of P1 and P2. That video evidence is the compelling evidence in this matter.
29. I do find that Mr Taylor did seek to minimise his behaviour in that he failed to tell the Court about the contact between the two cars prior to the final incident. He also said he was not angry when he got out of his vehicle and went onto the roadway to remonstrate with Mr Bayer. I find that latter claim to be an untruth. It is patently clear from the footage of P1, that Mr Taylor is in fact quite angry. Mr Taylor points and gestures at Mr Bayer on different occasions and is quite clearly shouting something towards the Mr Bayer’s direction. Mr Taylor does not raise his fists at any point but is clearly agitated and aggressive in his demeanour. What is said is unclear but I reject that part of his evidence, it is incongruous and unbelievable in the face of the footage of P1. [Emphasis added]
30. Thereafter, Mr Taylor conceded that he really had not much memory of matters once he was hit by Mr Bayer’s car. I do think his ability to recollect is understandable and that his memory after being struck, has been affected by the severity of his injuries. That lack of memory is not crucial because of the video footage of P1 and P2. Hence his credit as a witness is not crucial either.
The only other witness called by the prosecution was Detective Brevet Sergeant Lee Clarke (Clarke) who had interviewed Bayer and was the investigating officer. The DVD recording of that interview was exhibit P6.
Bayer did not give evidence at trial but his version as to how the subject incident occurred clearly appears by reference to a combination of the contents of two contemporaneous triple zero calls made by him and his police interview which commenced at just before 2.00 pm later that same day.
Bayer’s version was that while he was travelling on Main North Road, in the same direction and to the front of Taylor, Taylor manifested annoyance that Bayer was driving too slowly and started to “tailgate him’; Bayer then responded by what he referred to as “a little brake checking”. Unfortunately, this interaction culminated in Taylor hitting the rear of the Commodore two or three times in rapid succession with the nudge bar of the Colorado. (The photographs in evidence as exhibits P4 and P5 depict damage both to the “nudge bar” of the Colorado and to the rear end of the Commodore.)[2]
[2] It may be noted that the Commodore in no way touched the Colorado at the time of the later subject collision between the Commodore and the person of Taylor.
Following these impacts to the rear of the Commodore, Taylor overtook the Commodore and accelerated, continuing to travel in the same direction, but about ten cars ahead of Bayer. Bayer then attempted to catch up with the Colorado in order to obtain its registration number so as to report the matter to the police.
At this stage (and while he was driving), Bayer telephoned triple zero at 10.58 am in order to complain about Taylor’s driving and to ask for police assistance. He spoke with a female police telephonist (the first telephonist) for a period of three minutes and twenty seconds and it was during that very conversation that the subject collision occurred (evidenced by a muffled “thump” sound) immediately following which Bayer said, “I fuckin’ hit him”. However, the first telephonist apparently misunderstood the situation and terminated the call shortly after that at between 11.01 am and 11.02 am. Very shortly thereafter, Bayer again telephoned triple zero at 11.05 am and spoke with a male police telephonist (the second telephonist) for a further period of six minutes and forty-six seconds. These two triple zero calls are considered in more detail below.
The exhibits received as evidence at trial
The following exhibits were received as evidence at trial:
-Exhibit P1: A DVD from a “dashcam” in the Commodore which visually recorded events occurring to the front of the car (with audio sound track) (the “dashcam recording”).
-Exhibit P2: A DVD from a “dashcam” in another nearby vehicle driven by a Mr Hong (without audio sound track) was received as exhibit P2 (the “Hong dashcam recording”).
-Exhibit P3: A CD recording the two triple zero recordings.
-Exhibit P4: Photographs of the Commodore.
-Exhibit P5: Photographs of the Colorado.
-Exhibit P6: A DVD recording the police interview of Bayer (aural and visual).
I now review the above recorded material in exhibits P1 to P3 inclusive.
Exhibit P1: The dashcam footage from the Commodore
The dashcam footage from the Commodore has a timer which, while internally accurate, was not set to the correct time of day. Accordingly, the reference to hours are here removed and the references to minutes and seconds (commencing with the first entry “2:27”) are to be used only as recording the order and duration of the events referred to rather than the actual time of day when they occurred. (For orientation purposes, the last entry below referring to the moment of the subject collision between the Commodore and the body of Taylor which is labelled “2:43” occurred at very close to 11.01 am on 28 June 2019.)[3]
[3] The time of the occurrence of the subject collision is fixed by reference to the fact that the statement by Bayer “I’ve fuckin’ hit him” was made three minutes into the first triple zero call (exhibit P3) which call commenced at 10:58 am on 28 June 2019 (Agreed Fact No. 1).
The Commodore dashcam footage may be summarised thus:
2:27
The Colorado is seen ahead stationary in the right lane at the corner of John Rice and Haydown Road. Taylor cannot be seen. The Commodore draws up to and comes to a stop close to the rear of the Colorado.
2:29
About one second after the Commodore stops, Taylor exits the Colorado and can be seen to the right of his driver’s door. Immediately, the Commodore begins to reverse away from the stationary Colorado.
2:30
Taylor walks to the rear of the Colorado as Bayer continues to reverse away.
2:31
While at the rear right-side tyre of the Colorado, Taylor lifts both of his arms with his palms facing upwards and can be seen to be saying or yelling in the direction of the Commodore. The Commodore is continuing to reverse.
2:32
Taylor walks quickly past the rear right-side tyre of the Colorado (by about one to two metres). He lowers his arms to the side of his body, but continues to yell towards the Commodore. The Commodore continues to reverse.
2:33
Taylor slows his walking, and points with his right arm, while yelling, towards the Commodore. Taylor takes another step forward and stops and lowers his right arm. The Commodore continues to reverse.
2:34
Taylor turns his back to the Commodore. At this time, he commences to walk slowly back to the driver’s side door of the Colorado and at the same time the Commodore ceases to reverse and becomes stationary.
2:36
After taking three steps towards the Colorado, Taylor turns his head and torso towards the Commodore.
2:37
At this point, there is at least a whole car width between Taylor and the eventual path of the Commodore.
2:38
The Commodore begins to drive forward and manoeuvre around the left side of the Colorado. Taylor is standing near the driver’s side door of the Colorado and looks back towards the Commodore.
2:39
Taylor walks toward the right rear tyre of the Colorado at a slow and relaxed pace. He raises his left arm and points towards the Commodore and starts to yell. The Commodore is slowly moving forward.
2:40
Taylor takes a step towards the Commodore, again at a slow and relaxed pace, lowering his left arm and then raising his right arm and points towards the Commodore. Taylor continues to yell towards the Commodore which continues to move slowly forward.
2:40
Taylor takes another step forward, again at a slow and relaxed pace, lowers his right arm, and continues to yell towards the Commodore which begins to accelerate.
2:41
The Commodore accelerates forwards and moves towards the left-hand lane. It is only after this that Taylor, in a deliberate aggressive manner, suddenly speeds up and takes the first of three strides, moving past the rear of the Colorado toward the left-hand lane. These strides are much quicker and different in nature to his previous slow and relaxed steps.
2:41 – 2:42
The amount of time between Taylor commencing his three quick strides to when he is in the path of the Commodore is minuscule. The amount of time between Taylor’s second stride (when he is not in the path of the Commodore) and the third stride (when he is in its path) is even smaller.
2:43
A miniscule period of time after Taylor’s third stride, a slight straightening of the Commodore from left to right can be seen. The Commodore makes contact with the body of Taylor. There is approximately half a car’s width between the Commodore and the left-side curb.
Importantly, Bayer did not come close to striking any part of the Colorado.
Exhibit P2: The dashcam footage from the car driven by Mr Hong
The dashcam footage from the car driven by Mr Hong, exhibit P2, is less useful than exhibit P1. It shows the Colorado stationary in the right-hand lane, with Taylor standing on the road. The Commodore, in the right-hand lane, reverses and Taylor walks towards it. The Commodore comes to a brief stop at which time Taylor turns and walks back towards the Colorado. The Commodore slowly moves forward, and Taylor turns back and walks towards it. It then accelerates towards the left-hand lane and simultaneously Taylor moves in the same direction. The Commodore straightens slightly from left to right, at which point the subject collision occurs.[4]
[4] This footage does confirm that the Commodore could have passed the Colorado somewhat further to the left, a matter of relevance to the alternative charge of Careless Driving contrary to RTA s 45 discussed below.
Exhibit P3: The two triple zero call recordings
The Magistrate was apparently not provided with any aide memoire transcript of the two triple zero recordings. On the hearing of the appeal, counsel for Bayer (Mr Katsaras), provided the Court and the respondent with such transcripts. However, while helpful and appreciated, they are not completely accurate. Fresh aide memoire transcripts of what appears on the physical audio recordings have been prepared by Chambers. Obviously, the evidence to be acted upon at trial, and on appeal, is the sound track of the physical audio recordings and I have listened to them a number of times. I refer below to the aide memoire transcripts for ease of reference only.
The first triple zero recording
The first triple zero call was made by Bayer at 10.58 am as he was driving on Main North Road to the rear of the Colorado.
During the first part of that call, Bayer asked that police come and apprehend Taylor. He complained that shortly before, Taylor had “tailgated” him and had then hit the rear of his Commodore from behind with the Colorado two or three times. He said: “I was doing 80ks. He kept coming up my arse so I brake checked him. … He kept coming up my arse and then he, he hit me”. The final part of the call actually records the muffled sound of the subject collision with the body of Taylor and is as follows:[5]
[5] “T” is the first telephonist and “D” is defendant.
T
We’ll get someone out there.
D
He’s turning down at the hospital now.
T
Into the hospital?
D
Turning down Haydown Road.
T
Into Haydown. Okay. No worries. We’ll get someone –
D
He’s getting out of his car now.
T
Okay. We’ll get someone out there. Okay.
D
He’s a drug addict.
T
Okay. Thank you. Bye.
D
No. No. Stay on the phone, please.
T
I can’t stay on the phone. It’s triple O.
D
Are you getting him?
T
I’ve got the job in. Okay. I’m not coming out there. It’s for the other police. Okay.
Muffled sound of the subject collision between the Commodore and the body of Taylor
D
I fuckin’ hit him.
T
Well, I wouldn’t hit him.
D
I hit him ‘cos he ran right in front of me. He was trying to fuckin’ get me.
T
Okay. So, you hit him. He didn’t hit you. What’s the story?
D
He hit me [inaudible] –
T
Yep.
D
And ran right in front of me.
T
Yeah. Well, I suggest you probably wouldn’t want to follow him in case more stuff happens and other people then get hurt. Okay.
D
I’m right around the corner from mine. I’m parking my car at home and I’m going to walk over there.
T
Okay. No worries. We’ll send someone out. Thank you. I’m going to hang up.
D
He’s at John Rice. He’s at John Rice Road [inaudible]
T
Thank you.
D
And Haydown Road and – [CALL TERMINATED BY THE FIRST TELEPHONIST]
Immediately before Bayer stated “I fuckin’ hit him”, there is a muffled sound of the subject collision between the Commodore and the body of Taylor. However, it is quite clear that the first telephonist completely misapprehended the situation. Despite having been told by Bayer repeatedly throughout their conversation that he was then driving, the first telephonist apparently misconstrued Bayer’s contemporaneous utterances (“I fuckin’ hit him … I hit him ‘cos he ran right in front of me. He was trying to fuckin’ get me”) as being referable to some earlier occasion. Shortly thereafter, the first telephonist, who was plainly impatient to finish the call, in fact cut Bayer off by hanging up in his mid-sentence.
Of course, Bayer had no idea that the first telephonist had made such a critical error of understanding. He would certainly have understood the first telephonist’s words in the underlined passage above: “Well, I suggest you probably …” as urging Bayer to have nothing further to do with Taylor and to remain at home until police arrived there to speak with him.
Some important points need to be made concerning this first triple zero call. First, it was as startling an example of “two ships passing in the night” as one could imagine – but if anyone was to blame for this, it was not Bayer.
Secondly, having listened closely to it, I agree with the following submission made at trial by defence counsel in her written closing submissions:
31. Defence submits that the first 000 call (P3) provides evidence that Mr Bayer was scared of Mr Taylor. It is evident from Mr Bayer’s tone of voice in the first call to police that when Mr Taylor got out of his vehicle Mr Bayer is in fear. When Mr Bayer asks the 000 operator to “stay on the phone please” at 02:50 in the first call he sounds genuinely scared.
It is true that Bayer did not specifically use the word “scared” or “afraid” in the first triple zero call, but the confusing and unhelpful way in which the first telephonist behaved was hardly calculated to obtain such information. Nevertheless, Bayer made a highly relevant utterance immediately on the occurrence of the subject collision with Taylor, stating “I hit him ‘cos he ran right in front of me. He was trying to fucking get me”. (The Magistrate referred to this statement but wrongly reproduced it as “He was trying to fucking hit me”. I will return to this aspect of the matter below.)
Thirdly, it is quite clear that during this first triple zero call Bayer was desperate to report the facts to the police; to seek their attendance; and to receive their advice as to what he should do. But through the misconstruction of the situation by the first telephonist, and her impatience, he was denied this.
The second triple zero recording
As was agreed at trial, the site of the subject collision was only 500 metres from Bayer’s home[6] and he drove straight home and parked his car there. The second triple zero call was made by Bayer from his home at 11.05 am (being only about three minutes after the cessation of the first triple zero call). It was an excruciating conversation (lasting for a period of six minutes and forty-six seconds) in which the second telephonist was unable to find any trace of Bayer’s first conversation with the first telephonist (that had occurred only a very short period of time before) and proceeded in laborious fashion to take another history of the matter from Bayer for a second time.
[6] Agreed Fact No. 2.
During that second triple zero call, there are several observations made by Bayer consistent with him having been fearful of what might befall him if he stayed at the scene with Taylor. Thus, he stated:
I, I, I parked my car at home because I’m just around the corner and I’m just worried to go there yet. … I just live around the corner, just by the hospital so that’s why I drove around the corner and parked there at my house. … I, uh, I didn’t want to be there just in case what happened.
The second triple zero call concluded with the following interchange:
T
Right. Okay. But when you left, was he still there, was he or –
D
I’m not sure. I just went down the road, first right and that’s my street.
T
Right. Okay. Alright. We’ll get a patrol out there if it’s not already been organised then anyway. Okay.
D
Well, I reckon someone would be there. What should I do? Should I, should I go to the scene or should I just wait for someone to come around or –
T
As think as you’re nearby at home I reckon stay at home is your best bet. Okay? And we’ll either get someone to come, we’ll either get somebody to come and see you there or contact you. Okay.
D
Yeah, because I’m pretty shaken up.
T
Yeah.
D
I don’t even know what to do.
T
Yeah.
D
I did nothing. I didn’t do anything wrong.
T
Yep. Alright. You just stay for now, stay there away for now. We’ll get someone to either see you or contact you. …
Exhibits P4 and P5: Two books of photographs of the Commodore and Colorado
The photographs of the Commodore depict damage to the rear bumper area caused by the impacts by the Colorado’s nudge bar and damage to the front driver’s headlight and windscreen areas caused by the subject collision with Taylor’s body. The photographs of the Colorado depict damage/marks to the front nudge bar area caused by impacts of the nudge bar upon the rear bumper area of the Commodore.
I turn now to consider the appeal against each of the respective convictions on Counts 1 and 2.
PART A: THE APPEAL AGAINST THE CONVICTION ON COUNT 1
Section 19A of the Criminal Law Consolidation Act 1935 (CLC Act) relevantly provides as follows:
19A—Causing death or harm by use of vehicle or vessel
…
(3) A person who—
(a) drives a vehicle or operates a vessel in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person; and
(b) by that culpable negligence, recklessness or other conduct, causes harm to another,
is guilty of an indictable offence.
Maximum penalty:
…
(b) where a motor vehicle or motor vessel was used in the commission of the offence but serious harm was not caused to any person—
(i)for a first offence that is a basic offence—imprisonment for 5 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver’s licence for 1 year or such longer period as the court orders;
…
(6)Where a convicted person is disqualified from holding or obtaining a driver’s licence—
(a) the disqualification operates to cancel any driver’s licence held by the convicted person as at the commencement of the period of disqualification; and
(b) the disqualification may not be reduced or mitigated in any way or be substituted by any other penalty or sentence.
…
Consideration of the concept of “reckless driving”
As can be seen above, Count 1 as drawn charged the usual alternatives of driving “in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person” which appear in s 19A(3) CLC Act. However, at trial the prosecutor gave further particulars of the driving relied upon and positively restricted his case to that of “driving recklessly”. And in his final closing written submissions, the prosecutor stated:
In relation to count 1, Prosecution have, hung their hat (as it were) as the conduct being “reckless”, rather than “culpably negligent” or some form of dangerous. [sic]
As to the aspect of the driving said to be “reckless”, the prosecutor at trial particularised this as “continuing in a forward motion in proximity to Taylor”.[7]
[7] This was asserted in paragraph 4 of closing written submissions by defence counsel at trial, Ms HV Hannaford Gunn (a solicitor employed by the Legal Services Commission). This was not challenged by the prosecution at trial or on the appeal.
The Magistrate stated in his judgment:
45. The element of harm was conceded by agreed fact. The real issue in count one was whether the prosecution had proved Mr Bayer drove in a reckless manner.
46. The prosecution pinned its sails to the mast in count one when it particularised and maintained through the course the trial, that Mr Bayer had driven recklessly and by that recklessness caused harm to Mr Taylor.
In fact, this form of election was a highly unusual course for the prosecution to take. In modern times, such charges have almost always been particularised as relying upon: “driving at a speed that was dangerous”; or “driving in a manner that was dangerous”; or driving that was dangerous due to a combination of speed and manner. It is very rare to see a charge of this sort particularised at trial solely by reference to an allegation of driving “recklessly” alone (or, for that matter solely by reference to an allegation of driving “in a culpably negligent manner”).[8] This is probably because each of the terms “recklessly” and “in a culpably negligent manner” raise difficult and complex historical issues and each has been the subject of a good deal of complex exposition in the older decided cases and academic literature. Clearly, it is much simpler to charge and prove the usual charge referred to above (without averring “recklessly” or “in a culpably negligent manner”).
[8] I note in passing that in closing written submissions at trial, Ms Hannaford Gunn observed: “To the knowledge of defence there is no precedent for an offence against section 19A of the CLCA having been prosecuted on the basis of reckless driving. For that reason there is limited guidance as to the meaning of recklessness in this context”.
The history of the concept of “reckless driving” in South Australia
In South Australia, the continued retention of the concepts of “culpable driving” and “reckless driving” has not really mattered as long as charges were particularised as relying upon: “driving at a speed that was dangerous’; or “driving in a manner that was dangerous”; or “driving that was dangerous due to a combination of speed and manner”. But now that the police prosecutor in the present case has helpfully resurrected the concept of reliance solely upon an allegation of “reckless driving”, it is necessary to say something concerning the history and present status of that concept in South Australia. In doing so, I will be as brief as possible.
In 1911, the Victorian case of Kane v Dureau[9] was decided; it was to assume some importance in later judicial discussion. The defendant was there charged with driving “recklessly” contrary to s 10 of the Motor Car Act 1909 (Victoria) which relevantly provided that “if any person drives a motor car on a public highway recklessly or negligently or at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case … that person shall be guilty of an offence against this Act”.[10] In considering the meaning of the word “recklessly” in the above context, Cussen J stated:[11]
I do not intend to give any exhaustive definition of that word, but I think that for the purposes of this case its essential element, and one which to a certain extent distinguishes it from the other offences specified in the section, is what I may call “indifference to consequences.” In my opinion, a person may be said to drive a motor car recklessly if the circumstances are such that substantial harm may happen to another person using the road, and the person driving the motor car, either because he thinks that the conduct of the other person is such that he deserves to be frightened or to have his property slightly damaged, or for some other reason of that kind, is, or at all events appears to be, indifferent to the consequences that may actually happen from his driving on. I do not think it is necessary to sustain a charge of recklessly driving (though it may be important) that the motor car should be driven at a high rate of speed, or that there should be circumstances (other than the circumstances establishing such indifference to consequences) which would amount to what has been somewhat vaguely called “gross negligence.” I think that “recklessness,” which is characterized by indifference to consequences, is to be distinguished in this respect from “negligence,” in which the consequences are as a rule not expected at all. [Emphasis added]
[9] [1911] VLR 293.
[10] [1911] VLR 293, 294.
[11] [1911] VLR 293, 296-297.
Turning to the position in South Australia, in 1936 in the important decision in Thompson v Copeland, Murray CJ stated:[12]
The offence is created by sec. 44 of the Road Traffic Act 1934, which, so far as material, provides as follows:- “(1) Any person who drives a motor vehicle on any road in a culpably negligent manner or furiously or recklessly, or at a speed or in a manner which is dangerous to the public, shall be guilty of an offence, and liable to a penalty for a first offence of not less than ten pounds and not more than fifty pounds, and for any subsequent offence of not less than fifty pounds and not more than one hundred pounds, and may for such subsequent offence be imprisoned for any term not exceeding three months. (2) In considering whether an offence has been committed under this section, the Court shall have regard to all the circumstances of the case, including the nature, condition, and use of the road upon which the offence is alleged to have been committed, and to the amount of traffic which at the time actually is, or which might reasonably be expected to be, upon such road.”
The particular charge laid against the defendant was that he drove a motor-lorry recklessly on the date and on the road specified in the complaint.
There is very little authority on the meaning of the term “recklessly.” Cussen J. considered it in the Victorian case of Kane v. Dureau, [1911] V.L.R. 293, 33 A.L.T. 15, and this is what the learned Judge said, at p. 296: … [Emphasis added]
[12] [1936] SASR 45, 46.
Murray CJ then reproduced the passage from Kane v Dureau reproduced above at [44]. His Honour also referred to Dr Hearn’s work “Legal Rights and Duties” thus:[13]
… Dr Hearn was an eminent jurist whose views are entitled to respect. In the course of discussing the state of mind of a wrongdoer, after dealing with intention, rashness and heedlessness, and incidentally with negligence, the learned author said:- “There is a term in this series which Austin has not investigated, but which deserves some attention. That term is recklessness. Recklessness does not express any independent state of mind. It denotes the absence of interest or concern with which the actor adverts to the consequences. It is, therefore, merely a variety of intention. The actor considers the consequences and expects them, but is indifferent whether they happen or not. He does not desire them; he does not dislike them. He simply cares nothing about them. The presence of such likings or aversions, or their absence, does not enter into his consideration. But the act is positive, and, therefore, the state of mind is not negligence. The actor adverts to the consequences, and, therefore, it is not heedlessness. He does not expect, wisely or unwisely, that the usual consequences will not in that particular case follow, and, therefore, it is not rashness. Nothing, therefore, remains but intention; and the intention remains unchanged whether the actor did or did not desire the consequences, or whether he felt no wish either way upon the subject.” The learned author then gives illustrations.
The main points to be gathered from this analysis are that recklessness implies that the possible consequences which may ensue from his act are adverted to by the actor, but he is indifferent whether those consequences occur or not. With that view I think Cussen J. was in accord, and, approving of it myself, I propose to adopt it for the purposes of this case.
[13] [1936] SASR 45, 47-48.
After considering the facts of the case before him, Murray CJ concluded:[14]
The case may have been one of neglect to consider or to estimate the risk of possible consequences which would amount to negligence arising from heedlessness or rashness, but, in my judgment, it was not proved to be one of recklessness, for there was no evidence of the anticipation of consequences or of indifference as to whether they occurred or not.
The appeal will be allowed, and, as a prima facie case was not established by that part of the evidence which was properly admitted, the conviction must be quashed. [Emphasis added]
[14] [1936] SASR 45, 48-49.
In the 1938 decision of the High Court in R v Coventry,[15] the plurality Judgment (Latham CJ, Rich, Dixon and McTiernan JJ) also referred to Kane v Dureau with approval. Their Honours stated:[16]
The charge against the prisoner was laid under sec 14 of the Criminal Law Consolidation Act 1935 (S.A.). The section is a long one, comprising four sub-sections, all of which should be considered to obtain a full appreciation of its effect, but the words actually creating the offence or offences are relatively few. They are as follows: “Any person who—(a) drives a motor vehicle in a culpably negligent manner, or recklessly, or at a speed, or in a manner, which is dangerous to the public; and (b) by such negligence, recklessness, or other conduct, causes the death of any person, shall be guilty of a misdemeanour.” Upon a similar, but not quite identical, set of words Cussen J., in Kane v. Dureau, made three observations which we think are true of the South Australian provision. He said that there are several offences specified—driving recklessly; driving with (culpable) negligence; driving at a speed which is dangerous to the public; and driving in a manner which is dangerous to the public. Secondly, he said that he was by no means satisfied that the words were intended to be used in such a manner as to prevent any overlapping of the various offences therein set out. Thirdly, he said that, without giving any exhaustive definition of the word “recklessly,” it included an element which distinguished it from the other offences specified, an element which he called indifference to consequences. [Emphasis added; Citations omitted]
[15] The decision was in the reasons for refusing to grant the State of South Australia special leave to appeal from the decision of the South Australian Court of Criminal Appeal setting aside a conviction of the respondent Mr Coventry.
[16] (1938) 59 CLR 633, 637.
In stating that the three observations made by Cussen J in Kane v Dureau “are true of the South Australian provision”, the plurality plainly accepted that, in the South Australian provision now before this Court, the limb of reckless driving (when taken alone) “include(s) an element which distinguished it from the other offences specified, an element which he called indifference to consequences”.
However, the plurality then went on to make very plain that the considerations applicable to the alternative “driving recklessly” did not in any way permeate the other stand-alone alternatives of driving in a culpably negligent manner, or of driving at a speed which is dangerous to the public, or in a manner which is dangerous to the public. Thus immediately following the above passage, their Honours stated:[17]
The chief fear of the Crown is that the judgment from which special leave to appeal is sought imports this element into the other offences mentioned in the clause. The correctness of such a reading of the judgment may be doubted, but it seems better to say that, in our opinion, indifference to consequences is not an essential element either of driving in a culpably negligent manner, or of driving at a speed which is dangerous to the public, or in a manner which is dangerous to the public. The driver may have honestly believed that he was driving very carefully, and yet may be guilty of driving in a manner which is dangerous to the public. The jury is to determine, not whether the accused was in fact, as a matter of psychology, indifferent or not to the public safety, but whether he has driven in a manner which was dangerous to the public. The standard is an objective standard, “impersonal and universal, fixed in relation to the safety of other users of the highway” (per Hewart L.C.J. in McCrone v Riding; and see Kingman v Seager). The standard is impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles.
No doubt the language of the section does not exclude a defence of mistake of fact on reasonable grounds or of involuntariness (for example, interference by another person with the driving of the car), and perhaps there may be other exceptional excuses, based on special facts, to which a state of mind may not be immaterial. But, speaking generally, the expression “driving at a speed, or in a manner, which is dangerous to the public” describes the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence. It is not desirable to attempt to make an exhaustive catalogue of possible defences, and what we have said is sufficient to deal with the present case. [Emphasis added; Citations omitted]
[17] (1938) 59 CLR 633, 637-638.
And there the trail in South Australia went somewhat cold, save for the decision in 1998 of Bleby J in Taylor v Police.[18] His Honour was there concerned with an appeal against penalty after a plea of guilty to a charge under RTA s 46(1) and stated: [19]
Section 46(1) of the Road Traffic Act provides for three possible offences. Driving a vehicle recklessly, driving a vehicle at a speed which is dangerous to the public, and driving a vehicle in a manner which is dangerous to the public. Driving a vehicle recklessly suggests that there is some requirement that the accused was consciously aware of what he or she was doing, not caring whether the foreseeable consequences of the driving would occur or not. Those foreseeable consequences for which no regard is taken may be to others, or to the property of others, or to oneself. It is, in effect, a wilful shutting of one’s eyes to the consequences, and amounts really to gross carelessness involving a risk, the taking of which is considered carelessness. The risk in this case, of course, is risk of accident. It may involve many aspects of driving, not only speed. It may also involve the effects of alcohol.
The other alternative of driving in a manner dangerous to the public may or may not involve speed. It may involve many other features of driving. It may involve driving on the wrong side of the road, weaving, powerful acceleration, tailgating, or a combination of a number of factors with speed. It may also involve the effects of alcohol.
Driving at a speed which is dangerous to the public, which is the offence with which the appellant was charged, refers to one element of driving only: an element which may be included, of course, in both of the other alternatives.
The same penalty range is provided for all three offences. There is a sense in which driving at a speed dangerous to the public can be said to be at the lower end of the scale of those three offences, because it only involves the one element, whereas the other two may well include speed, but they also have the potential to be multifaceted. The prescribed penalty must accommodate the full range of possible circumstances of all three offences. [Emphasis added]
[18] [1998] SASC S6540 (4 February 1998).
[19] [1998] SASC S6540 (4 February 1998) 10.
Bleby J’s remarks were made in the context of an appeal against penalty after a guilty plea and were directed to the fact that the blameworthiness of a person charged and convicted solely on the basis of “speed dangerous to the public” (as the appellant there had been) might well be less than that of a person charged and convicted of “reckless driving” (with its necessity “that the accused was consciously aware of what he or she was doing, not caring whether the foreseeable consequences of the driving would occur or not”). I respectfully agree with his Honour’s approach.
‘Defining down’ the concepts of ‘recklessness’ and ‘culpable driving’
In a number of jurisdictions (other than South Australia) the format of this type of driving offence has long been restricted to speed and manner of driving, with the older alternative heads of liability of “culpably negligent manner” and “recklessly” either being omitted from the statute or “defined down” to a more simple objective form.
As one example, the decision in 1966 in McBride v The Queen[20] is a central decision of the High Court concerning the causing of injury or death by driving dangerously and passages from that decision are constantly referred to (and indeed a passage is later reproduced herein at [81]). However, for the purposes of the present unusual case, it is to be emphasised that in McBride v The Queen the relevant NSW offence provision was in the following terms:[21]
(1)Where the death of any person is occasioned through impact with a motor vehicle or through the impact of a motor vehicle with any vehicle or other object in, on or near which the person was at the time of impact and in either case the motor vehicle was at the time of impact being driven by a person—
(a) under the influence of intoxicating liquor or of a drug; or
(b) at a speed or in a manner which is dangerous to the public,
the person last-mentioned shall be guilty of the misdemeanour of culpable driving and shall be liable to imprisonment for five years. [Emphasis added]
[20] (1966) 115 CLR 44.
[21] Section 52A(1) of the Crimes Act 1900 (NSW). Sub-section (2) enacted an offence in the same terms applicable to cases where grievous bodily harm rather than death ensued.
Thus, it can be seen that the difficult concept of “culpable driving”[22] was disposed of by the NSW Legislature using that term solely as a label for the statutory offence being created; and ‘defining down’ the offence in a way which obviously did not include any need to refer to “reckless driving”.
[22] It is not presently necessary to enter into a discussion of the history of “culpable driving”. Suffice it to say that it would not be an efficient course to particularise a charge as relying on “culpable driving” alone.
In similar vein, in 2014 in Giudice v Legal Profession Complaints Committee,[23] the Western Australian Court of Appeal noted how the meaning of the word “reckless” could vary, particularly by reference to its statutory context. Thus, Martin CJ used as an example the ‘defining down’ of the concept of recklessness in Western Australian driving legislation and stated:[24]
42. The word ‘reckless’ is used in many different legal contexts. A useful review of those differing contexts is provided by the decision to which the Tribunal referred: Pollard v Commonwealth Director of Public Prosecutions. Although the word has been described as ambiguous and as ‘imprecise in ordinary parlance’, I would prefer to say that the word is capable of bearing different meanings, and that the particular meaning to be applied is to be ascertained from the context in which the word is used.
43. In one context, the word is capable of connoting a particular characterisation of conduct objectively assessed, without regard to the state of mind of the person responsible for that conduct. So, s 60 of the Road Traffic Act 1974 (WA) provides that the offence of reckless driving is committed by wilfully driving a motor vehicle in a manner that is inherently dangerous or that is, having regard to all the circumstances of the case, dangerous to the public or to any person. In that context, the only state of mind which must be proven to establish the offence is to the effect that the driving of the motor vehicle was wilful, and the word ‘reckless’ is used to characterise objectively the degree of risk created by the manner in which the vehicle was driven. The section does not require the prosecution to establish that the driver was aware of the risk which was created, or was wilfully indifferent to that risk. Section 62 of the Road Traffic Act provides that the offence of careless driving is committed by a person who drives a motor vehicle without due care and attention. So, in the context of the Road Traffic Act, the word ‘reckless’ is used to connote driving which creates risks of a particular character and which is, for that reason, more culpable than careless driving.
44. In other legal contexts, the word ‘reckless’ requires that a particular state of mind be subjectively established. … [Emphasis added; Citations omitted]
[23] [2014] WASCA 115, [42]-[44].
[24] [2014] WASCA 115.
Edelman J, as he then was, agreed with his Honour’s approach.
Buss JA also agreed with that approach; but his Honour observed as to the South Australian traffic legislation (which does not “define down” the concept of recklessness in the way that the Western Australian legislation does) thus:[25]
86. Numerous cases have examined the distinction between recklessness and negligence. In Kane v Dureau [1911] VLR 293, Cussen J said that ‘“recklessness”, which is characterised by indifference to consequences, is to be distinguished in this respect from “negligence”, in which the consequences are as a rule not expected at all’. In Thompson v Copeland [1936] SASR 45, Murray CJ observed that ‘recklessness implies that the possible consequences which may ensue from [a person’s] act are adverted to by the actor, but he is indifferent whether those consequences occur or not’ (47 ‑ 48). See also Lederer v Hitchins [1961] WAR 99, 101 (Virtue J).
87. So, on those authorities, to be reckless as distinct from negligent, conduct must be such as to evince a disregard of or an indifference to consequences. A reckless disregard or indifference involves, at least, a subjective element of actual conscious disregard of or indifference to the risks created by the conduct. [Emphasis added]
A further wrinkle: “Recklessness” may sometimes be inferred despite a defendant’s denial of advertence to risk
[25] [2014] WASCA 115, [86]-[87].
The position is that if, as in the present case, a charge under the South Australian legislation is particularised as relying upon “reckless driving” alone, the prosecution must establish that the defendant did actually advert to the risk he was creating (or would create) and proceeded regardless.
However, it is to be noted that in some clear cases of apparent subjective recklessness a Court is not bound to accept as determinative a bland denial by a defendant that he did so advert. Sometimes the risk may be demonstrated to have been so obvious to a person in the defendant’s position that such a denial of advertence may be positively disbelieved; and the Court may proceed on the basis that it may be inferred beyond reasonable doubt from all of the evidence that the defendant did in fact realise or advert to the risk he was creating (or would create).[26]
[26] Such comments are to be found in various of the authorities. A recent example is that of Dunjey v Cross [2002] WASCA 14, per Miller J at [31], [36]-[37].
The Magistrate’s approach to the concept of reckless driving
The Magistrate’s approach to the meaning and requirements of the present charge is, with respect, somewhat confusing. The relevant passage in his Honour’s judgment, in full, is as follows:
The law, elements and findings of fact - count one
44. The offence is causing harm by the use of a vehicle or vessel consists of three elements:
·The accused drove a vehicle;
·The accused drove the vehicle in a reckless manner; and
·By driving in that manner, the accused caused harm to another.
45. The element of harm was conceded by agreed fact. The real issue in count one was whether the prosecution had proved Mr Bayer drove in a reckless manner.
46. The prosecution pinned its sails to the mast in count one when it particularised and maintained through the course the trial, that Mr Bayer had driven recklessly and by that recklessness caused harm to Mr Taylor.
47. The classic distillation of driving recklessly is found in Taylor v Police:[27]
[27] [1998] SASC 6540 (4 February 1998).
“… driving a vehicle recklessly suggests that there is some requirement that the accused was consciously aware of what he or she was doing, not caring whether the foreseeable consequences of the driving would occur or not. Those foreseeable consequences for which no request regard is taken may be to others, or to the property of others, or to oneself. It is, in effect, a wilful shutting of one’s eyes to the consequences, and amounts really to gross carelessness involving a risk, the taking of which is considered carelessness. The risk in this case of course, is a risk is risk of accident. It may involve many aspects of driving, not only speed. It may also involve the effects of alcohol.”[28]
48. Bleby J goes on to speak about two alternatives in relation to section 46; one of speed and manner dangerous which are not relevant to my considerations.
49. The conduct of such drivers is to be assessed according to objective standard.
50. In R v Coventry,[29] the High Court observed:
“The standard is impersonal (and universal) in the sense that it does not vary with individuals, and is universal in the sense that it is applicable in the case of all persons who drive motor vehicles.”[30]
51. The High Court went on to say that the driving in the context of driving in a manner dangerous or speed dangerous “… describes the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence”.[31] Hence, in my view, no mental element of intent need be proved for this offence either. [Emphasis added]
[28] Ibid 10 (Bleby J).
[29] (1938) 59 CLR 633.
[30] Ibid 638 (Latham CJ, Rich, Dixon and McTiernan JJ).
[31] Ibid.
At paragraph [49], the reference to “such drivers” appears to mean the drivers charged with “speed or manner dangerous” as referred to in his Honour’s immediately prior paragraph [48]. If that is so, then the statement at paragraph [49] that the conduct of such drivers is to be assessed according to objective standard is unexceptionable.
At paragraph [50] his Honour reproduces a sentence from the plurality judgment of the High Court in Coventry,[32] thus:
The standard is impersonal
(and universal)[33] in the sense that it does not vary with individuals, and is universal in the sense that it is applicable in the case of all persons who drive motor vehicles.[32] (1938) 59 CLR 633.
[33] The inclusion of these struck through words is a typing error since they do not appear in the High Court Judgment.
However, as appears in the full passage from the High Court judgment (reproduced above at paragraph [50]), the sentence extracted by the Magistrate follows shortly after the plurality had specifically and separately addressed the exceptional category of ‘reckless driving’ and had clearly recognised a distinction between that category (on the one hand) and a charge founded upon any of the other three categories of excessive speed or manner of driving or culpable negligence (on the other hand). The judgment had then moved on to deal with the three remaining categories thus:[34]
…(I)ndifference to consequences is not an essential element either of driving in a culpably negligent manner, or of driving at a speed which is dangerous to the public, or in a manner which is dangerous to the public.
[34] R v Coventry (1938) 59 CLR 633, 637.
The plurality then went on to make the statement extracted by his Honour – again clearly not referring to the first category of reckless driving.
At paragraph [51], the Magistrate extracts part of a sentence taken from the middle of the next paragraph of the plurality judgment, namely:
… describes the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence. [Citation omitted]
The full paragraph from which that half sentence was taken appears as follows (with the words extracted by the Magistrate emboldened):[35]
No doubt the language of the section does not exclude a defence of mistake of fact on reasonable grounds or of involuntariness (for example, interference by another person with the driving of the car), and perhaps there may be other exceptional excuses, based on special facts, to which a state of mind may not be immaterial. But, speaking generally, the expression “driving at a speed, or in a manner, which is dangerous to the public” describes the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence. It is not desirable to attempt to make an exhaustive catalogue of possible defences, and what we have said is sufficient to deal with the present case. [Emphasis added]
[35] Ibid 638.
The position is that in this paragraph the plurality, for completeness, alluded to a new topic of rather more esoteric special facts and defences that might arise at some time (but which did not arise in Coventry, or in the present case for that matter[36]). And the plurality in Coventry was careful to make clear that it is here only addressing the two limbs of “driving at a speed, or in a manner, which is dangerous to the public” and not “reckless driving”.
[36] (1938) 59 CLR 633. Important aspects of such matters (not arising in the present case) are discussed in such decisions as Jiminez v The Queen (1992) 173 CLR 572 and Kroon v The Queen (1990-91) 55 SASR 476.
However, the Magistrate at his paragraph [51], immediately after reproducing only the half sentence from Coventry reproduced above concludes:
Hence, in my view, no mental element of intent need be proved for this offence either. [Emphasis added]
It seems that the Magistrate here means that “hence” (ie, in the light of the extracts he had previously reproduced from the plurality judgment in Coventry) “no mental element of intent need be proved for this offence either” (ie, no mental element of intent need be proved for an offence of driving recklessly).
I can only say, with respect, that this appears to be a non sequitur if it is intended to apply to a requirement to prove subjective advertence to risk in a charge limited to “reckless driving” under the South Australian provisions; and it is quite clear that the plurality in Coventry did not so intend.
The Magistrate’s findings of fact concerning Count 1
The Magistrate made plain that he did not find that Bayer was driving at a dangerous speed as he approached and then hit Taylor. Rather, he held that Count 1 was made out by two aspects of Bayer’s driving as follows. First, that Bayer “drove too close to Taylor” (paragraphs [53], [54], [60], [61] and [71] of his judgment). Secondly, that after bearing left to get around Taylor, he over-corrected his travelling to the left and by “straightening” his direction of travel very shortly before impact in circumstances where the subject collision might not have occurred had he not done so (paragraphs [60], [61], [65], [66] and [73] of his judgment).
Consideration of the disposition of the appeal concerning Count 1
I have carefully considered all of the evidence including the exhibits discussed above. I conclude that advertence by Bayer to the relevant risk as required by the offence of “reckless driving” was not established beyond reasonable doubt having regard to the cumulative effect of the following matters.
First, it is worth stating the obvious proposition that at the relevant time Bayer wanted to do no more than to drive to his home only 500 metres away. When Bayer arrived behind the Colorado, and discovered to his surprise that Taylor had left it stationary on the roadway and was getting out of it apparently to confront him,[37] Bayer was committing no offence. In later attempting to go around Taylor by entering the left lane for the same direction of travel, Bayer was intent on simply driving past Taylor and the classical features of dangerous driving (which distinguish it from a lesser offence of careless driving) such as speeding or loss of control of a vehicle or driving while impaired by alcohol, drugs or tiredness, were all absent.
[37] During his cross-examination at trial, Taylor admitted that he had intended to confront Bayer (Magistrates Court Trial Transcript page 25.26).
Secondly, any defect in Bayer’s driving was very brief indeed. It must be remembered that the position is to be assessed by reference to a reasonable man in the position of this defendant. Thus, in R v Duryea, White J observed:[38]
19. In the present case, the directions of the Judge, particularly those in the paragraphs which I have numbered [7] and [8] would, in my opinion have suggested to the jury that it was the view which they, sitting as jurors, took of the appellant’s driving which was critical. The jury was not encouraged or directed by other passages in the summing up to assess the appellant’s manner of driving objectively by reference to his situation at the time. The direction in the paragraph numbered [8] would, in my respectful opinion, have indicated to the jury that it was appropriate for them to consider the manner of driving from their perspective as reasonable members of the community, rather than considering whether a reasonable person in the situation of the appellant ought to have recognised that his driving constituted a danger to the public which went beyond the ordinary risks of the road. In my respectful opinion, the Judge’s directions were in this respect incomplete, and the jury was not instructed appropriately.
[38] (2008) 103 SASR 70, [19].
Thus, in the present case, it is to be emphasised that any defect in the driving must be assessed by reference to the distracting circumstances here faced by Bayer. These included:
-Bayer suddenly discovered that the road leading to his home was being largely blocked by the person Taylor who had just before rammed Bayer’s car from the rear and about whom Bayer was at that very moment complaining in a triple zero call, requesting that police attend.
-Taylor then advanced on foot toward Bayer (in his car) in an abusive and threatening manner, apparently angry, and gesticulating vigorously.[39] In cross-examination at trial, Taylor accepted that as at June 2019 he was just over six feet in height and was “relatively well-built, broad shoulders, tall”.[40] The dashcam footage shows Taylor to be taller, broader and having a thicker-set body type than Bayer.
-Bayer immediately reversed his car some distance to get away from Taylor.
-Bayer then proceeded to drive forward, but his only intention in doing so was to avoid any further interaction with Taylor.
-The way around the Colorado to the left side was apparently open and Bayer decided to take that route home (only 500 metres away) and drove forward to do so.
-At virtually the same time as Bayer started to drive past the Colorado to its left, Taylor suddenly moved quickly forward in three rapid strides from right to left behind the Colorado and effectively into Bayer’s path.
-Bayer was unable to react quickly enough to that surprising development so as to avoid a collision (if such avoidance was indeed possible in the circumstances).
-The prosecution specifically eschewed reliance upon the speed at which he was driving at the time of the subject collision. Bayer stated in his police interview that at the moment of the subject collision he was still in first gear of the Commodore’s manual transmission and that claim was not disputed at trial. [41]
[39] And see the passage at paragraph [29] of the Magistrate’s Judgment reproduced herein at [96].
[40] Magistrates Court Trial Transcript page 28.23-33.
[41] The photographs of the Commodore in exhibit P4 confirm that it had a manual transmission.
In my view, any defective nature of Bayer’s driving is simply insufficient to prove beyond reasonable doubt that he actually adverted to a risk that he might collide with Taylor and decided to proceed regardless. As Murray CJ pithily concluded in Thompson v Copeland:[42]
The case may have been one of neglect to consider or to estimate the risk of possible consequences which would amount to negligence arising from heedlessness or rashness, but, in my judgment, it was not proved to be one of recklessness, for there was no evidence of the anticipation of consequences or of indifference as to whether they occurred or not. [Emphasis added]
[42] [1936] SASR 45, 48-49.
Alternative consideration of “Driving in a manner dangerous”
Against the possibility that the analysis above concerning “reckless driving” were not to be accepted, I will, for completeness, consider what the position would have been if the charge had been particularised at trial as driving “in a manner dangerous” rather than “recklessly”.
If the charge had been particularised as “driving in a manner dangerous” it would have been necessary to consider on a purely objective basis whether the driving rose to the level of “Dangerous Driving” rather than driving that would constitute “Careless Driving” contrary to RTA s 45.
In 1953 in directing a jury in R v Duncan, Napier CJ drew the distinction between driving without due care and driving in a manner dangerous thus:[43]
… [O]ur statute law provides for something like an ascending scale of offences. The least of these is the offence of “driving without due care and attention”. That covers any material departure from the high standard of care which is due by anybody who drives a motor vehicle. It is the standard which gives a civil right of action for damages; but, over and above that, there is the more serious offence of driving in the manner alleged in the information in this case, namely, “driving in a manner dangerous to the public”. I think that the distinction between these two offences is best explained by pointing out to you that all—or at any rate most—of us are liable at times to do things that we ought not to do, and to leave undone things that we ought to have done. When we use the public highway, we must expect to meet people like ourselves—people who are only human beings—with the human tendency to depart, at times, from the full standard of care and skill. That you may regard as negligence— “driving without due care and attention”—but, nevertheless as an ordinary “risk of the road”. If it is a case of “You today, and me tomorrow”, we have to accept the risk as one of the ordinary incidents of modern life. If we live in an age of aeroplanes and fast-moving traffic, we have to take things as they are—the thick with the thin, and you the pedestrian today and tomorrow the driver, are to say where the line should be drawn between a mere lapse from due care and attention and conduct which is plainly blameworthy. …
[43] This part of his Honour’s summing up was published at (1975) 11 SASR 592, following the report of R v Mayne (1975) 11 SASR 583; as to which see Bray CJ at 585.
In 1966, in the central decision of the High Court in McBride v The Queen (referred to above), Barwick CJ stated:[44]
The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public, but the need for death or injury to a person to result from impact with a vehicle so driven may make that question unlikely to arise, though the possibility of its doing so must be acknowledged.
This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section.
This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby. These distinctions make it imperative that the jury be specifically directed as to the criteria to be applied and the distinctions to be observed in determining whether any particular speed or manner of driving can have the quality, intrinsic or occasional, of being dangerous to the public within the meaning of the section: and that the particular features of the driving charged as in breach of the section be isolated for the jury and related to these criteria. [Emphasis added]
[44] (1966) 115 CLR 44, 49-50.
And in 1982, in Pope v Hall, Wells J observed that to establish dangerous driving, it must: [45]
… pass(ing) beyond the point where it represented a mere departure—and nothing more serious—from the rules of the ordinary highway code, and became so serious a departure from those rules that the manner or speed of the driving (as the case may be) created a wholly unreasonable and unwarranted danger to the life, or limb, or both, of other road users.[46] [Emphasis added]
[45] (1982) 30 SASR 78, 79.
[46] Ibid 79.
Finally, in 1990 in R v Kamleh, King CJ summarised the matter thus:[47]
The crime is committed by the act of driving in a manner which any reasonable person in the situation of the driver would recognise as dangerous in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public. Ordinary risks of the road include those arising from the sort of faulty driving and lack of care which must be expected, due to human frailty, from time to time, from the ordinary driver. The sort of driving which constitutes this crime is more serious than that. It is driving which a reasonable person in the situation of the driver would understand to be such as would give rise to a serious risk of injury to members of the public going beyond the ordinary risks of the road. It is driving which is therefore fit to be regarded as a serious crime. If the driving, although negligent, does not go beyond what might fairly be regarded as an ordinary risk of the road, a crime of causing death or bodily injury by dangerous driving is not committed but the driver is guilty of driving without due care or attention contrary to s 45 of the Road Traffic Act 1961 (SA), a verdict of guilty of which offence is open to the jury by virtue of s 19b(2) of the Criminal Law Consolidation Act 1935 (SA).
[47] (1990) 51 A Crim R 435, 437. I note that it may be that his Honour’s comment “It is driving which is therefore fit to be regarded as a serious crime”, while perfectly appropriate as part of legal analysis, should no longer be made part of a summing up to a jury. See the decision of the High Court in King v The Queen (2012) 245 CLR 588.
Once again, bearing in mind that any defect in driving must be assessed by reference to a reasonable man in the position of this defendant, and having regard to the distracting circumstances here faced by Bayer considered above at paragraph [76], I conclude that on all of the evidence the driving was not shown to be so defective as to rise to the level of Driving in a Manner Dangerous.
Careless Driving contrary to RTA s 45 is established
Both parties agreed that the only alternative verdict on Count 1 available to the Court in the particular circumstances of this case is Careless Driving contrary to RTA s 45 (and that an alternative verdict of Cause Injury by Careless Driving is not available).
In all of the circumstances, I find that Bayer is guilty of that alternative charge. I do so on the basis that, after Bayer had reversed back for a substantial distance from the stationary Colorado at the intersection of John Rice Avenue and Haydown Road, he then drove forward in the right lane to a position close to the Colorado; and only then steered into the left lane to pass it on the left. This had the effect of the Commodore driving closer to the initial position of Taylor and, more importantly, led to the “straightening” of the Commodore which is observed on the dashcam footage exhibit P1. Bayer should have entered the left lane much earlier than he did. In failing to do so, and in driving much closer to the Colorado than he needed to, I find that he committed a breach of RTA s 45.
I take into account that a serious collision occurred and that Taylor did sustain substantial injuries (although not rising to the level of “serious harm” for the purposes of the legislation). On the other hand, there are a number of extenuating circumstances which include that Bayer was highly distracted by his fear of Taylor, and of what he might do, such that his offence was a momentary aberration and understandable in all of the circumstances.
PART B: APPEAL AGAINST THE CONVICTION ON COUNT 2
Count 2 is charged as follows:
On the 28th day of June 2019 at ELIZABETH VALE in the said State, drove a vehicle without due care or attention that caused physical harm to another, failed to satisfy the statutory obligations of a driver of a vehicle in relation to the incident.
Section 19AB(2) of the Criminal Law Consolidation Act, 1935.This is a Minor indictable offence.
CLC Act s 19AB(2) relevantly provides as follows:
19AB—Leaving accident scene etc after causing death or harm by careless use of vehicle or vessel
…
(2) A person who—
(a) drives a vehicle or operates a vessel without due care or attention; and
(b) by that conduct, causes physical harm to another; and
(c) fails to satisfy the statutory obligations of a driver of a vehicle or an operator of a vessel (as the case may be) in relation to the incident,
is guilty of an offence.
Maximum penalty:
…
(b) where a motor vehicle or motor vessel was used in the commission of the offence but the physical harm caused to any person does not amount to serious harm—
(i)for a first offence—imprisonment for 5 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver’s licence for 1 year or such longer period as the court orders;
…
(3) For the purposes of subsection (1) and (2)—
(a) a person fails to satisfy the statutory obligations of a driver of a vehicle in relation to an incident if the person commits an offence against section 43 of the Road Traffic Act 1961 in relation to the incident;
…
(5)Where a convicted person is disqualified from holding or obtaining a driver’s licence—
(a) the disqualification operates to cancel any driver’s licence held by the convicted person as at the commencement of the period of disqualification; and
(b) the disqualification may not be reduced or mitigated in any way or be substituted by any other penalty or sentence. …
Thus, the prosecution must here prove that the defendant “failed to satisfy the statutory obligations of a driver of a vehicle in relation to the incident”. The failure relied upon by the prosecution in the present case is limited to a breach of RTA s 43(1)(a)[48] which states:
43—Duty to stop, give assistance and present to police where person killed or injured
(1) The driver of a vehicle involved in an accident in which a person is killed or injured must—
(a) immediately after the accident—
(i) stop the vehicle; and
(ii) give all possible assistance; …
[48] It is not suggested that there was a breach of RTA s 43(1)(b).
The prosecution case was that Bayer did not “immediately after the accident stop the vehicle …” and instead drove on towards his home while continuing the conversation with the first telephonist. The prosecution submitted that the comments made by the first telephonist concerning him returning home and remaining there were made only after Bayer had continued to drive after the subject collision for such a distance as evinced and established a non-compliance with the legislative injunction to “immediately after the accident stop the vehicle”.
A defence – “The defendant genuinely believed on reasonable grounds that compliance with subsection (l)(a) would endanger his physical safety”
RTA s 43(3)(b) relevantly provides:
(3) It is a defence to a charge of an offence against subsection (1) to prove that—
…
(b) in relation only to a failure to comply with subsection (l)(a), the defendant—
(i)genuinely believed on reasonable grounds that compliance with subsection (l)(a) would endanger the defendant’s physical safety, or the physical safety of another person; and
(ii)at the earliest opportunity notified police, ambulance or some other authority responsible for providing emergency services of the accident;
… [Emphasis added]
There is no doubt that Bayer has proven that he complied with s 43(3)(b)(ii). He was speaking to the first telephonist at the time of the subject collision and immediately reported it. He was, in effect, told to return home and wait there; and did so. Three minutes after the cessation of that first triple zero call he made the second triple zero call from home, again reported the accident, and sought urgent advice as to what he should do. He was advised to remain at home until police arrived. He did so.
The defence case was that the requirement in s 43(3)(b)(i), namely that he “genuinely believed on reasonable grounds that compliance with subsection (l)(a) would endanger [his] physical safety”, was also proven.[49] The following tranches of evidence in support of that contention are to be considered cumulatively.
[49] A body of statements made by a defendant in a police interview which is tendered in evidence by the prosecution (together with, or without, other evidence in the case) may be capable of establishing a defence the proof of which lies on the defendant. See the discussion in Steen v The Queen (2020) 135 SASR 554, 597-598 [124]–[126]. I note that in the present case it was submitted that a common law defence of “necessity” had to be considered as well as the statutory defence in RTA s 43(3)(b)(i) and the Magistrate adopted a course of dealing with both defences together. I find it unnecessary to consider that matter.
First, Taylor had behaved aggressively and unreasonably in his initial actions of deliberately running into the rear of the Commodore two or three times and Bayer had been, and remained, frightened by Taylor’s aggressive behaviour.
Secondly, when following the Colorado in order to assist the police in apprehending the driver, he had the further frightening experience of suddenly finding that the driver had stopped the vehicle in the right lane of the two lanes for travel in that direction. Bayer pulled up behind the then stationary Colorado and Taylor very shortly thereafter alighted and advanced on foot toward Bayer (in his car) in an abusive and threatening manner, apparently angry, and gesticulating vigorously. This was accepted by the Magistrate in an early passage in his judgment dealing with facts in general as follows:
29. I do find that Mr Taylor did seek to minimise his behaviour in that he failed to tell the Court about the contact between the two cars prior to the final incident. He also said he was not angry when he got out of his vehicle and went onto the roadway to remonstrate with Mr Bayer. I find that latter claim to be an untruth. It is patently clear from the footage of P1, that Mr Taylor is in fact quite angry. Mr Taylor points and gestures at Mr Bayer on different occasions and is quite clearly shouting something towards the Mr Bayer’s direction. Mr Taylor does not raise his fists at any point but is clearly agitated and aggressive in his demeanour. What is said is unclear but I reject that part of his evidence, it is incongruous and unbelievable in the face of the footage of P1. [Emphasis added]
Thirdly, Bayer had been speaking to the first telephonist during the above events and the sound of fear in his voice is manifest. As noted above, I agree with defence counsel’s submission:
31. Defence submits that the first 000 call (P3) provides evidence that Mr Bayer was scared of Mr Taylor. It is evident from Mr Bayer’s tone of voice in the first call to police that when Mr Taylor got out of his vehicle Mr Bayer is in fear. When Mr Bayer asks the 000 operator to “stay on the phone please” at 02:50 in the first call he sounds genuinely scared.
As mentioned above, in cross-examination at trial, Taylor accepted that as at June 2019 he was just over six feet in height and was “relatively well-built, broad shoulders, tall”.[50] The dashcam footage shows Taylor to be taller, broader and having a thicker-set body type than Bayer.
[50] Magistrates Court Trial Transcript page 28.23-33.
Fourthly, Bayer immediately drove backwards for a substantial distance in reverse gear to distance himself from Taylor in fear of what he might do and stopped. Bayer then determined that he would be able to pass Taylor and his vehicle on the left side in the left lane and moved forward at a fairly slow speed in first gear in the right lane. Taylor was again gesticulating aggressively, and at the last moment quickly moved towards the Commodore. Unfortunately, the subject collision ensued. On the recording of the first triple zero call, immediately after the muffled sound of the subject collision, Bayer said to the first telephonist: “I fuckin’ hit him”. Very shortly after that, he said to her: “I hit him ‘cos he ran right in front of me. He was trying to fuckin’ get me”.
Fifthly, Bayer returned home as he understood the first telephonist had directed. When at home, Bayer made the second triple zero call (only minutes after the end of the first call). During that call, he stated to the second telephonist: “I’m pretty shaken up. … I just live around the corner, just by the hospital so that’s why I drove around the corner and parked there at my house. I even told the lady on the phone that. … I, uh, I didn’t want to be there just in case what happened”. (Clearly meaning “what might happen to him” if Taylor continued to behave aggressively).
Sixthly, Bayer then remained at home until police arrived at 12.20 pm. He thereafter fully co-operated with them including: submitting to an alcotest (negative); supplying them with the dashcam footage; and permitting extensive photography of the Commodore. Clarke later arrived and after preparation for conducting an audio/visual interview was completed, that interview formally commenced at 1.59 pm (just under three hours after the occurrence of the subject collision at about 11.01 am).
Seventhly, during the police interview Bayer again fully co-operated. He was given for the first time an opportunity to explain in detail what had occurred, including the circumstances under which he had left the scene due to his fear for his safety (or fear of what Taylor “might do”). That interview includes the following exculpatory statements:
DVD of police interview - exculpatory statements
Bayer is informed that he is under arrest and cautioned.
B: And then I told the lady and that cos I was stressed out, I didn’t know what to do and all that.
And then he left so I followed him and I was on the phone to her.
And then we went down John Rice and then oh, the, ah, he was ah stopped to turn Right onto Haydown Road and I was on the phone to the, to lady and I said “can, can you please stay on the phone, I’m like scared” and all this.
B: And then he ended up getting out his car, he come, he was coming towards me like he’s going like this — to me, going like “what”.
[Bayer raised both arms upwards and outwards from the front of his body to shoulder height.]
So then I, I reversed back and then he started to go back to his car and then when I went to left ah go Left he started coming that way — and that’s where he’d leaped out, sort of jumped out.
[Bayer jolts his upper body forward.]
B: (He) was in front of me and he got out his car and he was starting to like and he wanted to like try and have a fight or something. …
[Bayer raised his right arm to chest height very briefly.]
So I put my car in reverse and I went straight back.
B: … I was worried, I didn’t know what he was going to do so I said to the Cops “I’m only around the corner, I’ll park my car there, should I go back or should I just stay here”.
And that’s when they said “stay, stay home”.
B: I’ve gone onto the phone straight away and I was like, I was stressed out so I was like you know, fid, fiddling around and I called ‘em.
C: So, so you said, you said before that obviously prior to him being hit by your car that you, ‘you started to reverse cos you felt scared’.
B: (Because) he was coming towards me, he was like with, with attitude like that – and he was like “come on whats going on” like that.
[Bayer raised his right arm to chest height and moved it forwards away from his body. Then twice raised both arms to shoulder height and out towards the front of his body.]
B: … he could’ve, he could’ve smashed my window. … that’s why I wanted to get away.
C: But you’ve already called Police though haven’t you?
B: Yeah but the Police weren’t around, what happens if he smashed my widow and then started ah fighting me, what am I going to do?
The Magistrate’s approach to Bayer’s police interview
There are serious concerns with the way in which the Magistrate approached the above defence provision; and particularly the content of the police interview as it bore upon that provision. His Honour stated:
110. Mr Bayer engaged in a record of interview under caution. The prosecution relies on some parts of the interview, and the defence relies on other parts. Both the parts that help the prosecution and the parts that help the defence are evidence in the case. I remind myself that as with all witnesses, I may accept some parts of what the accused said, and reject other parts. I remind myself that where the interview contains exculpatory statements, such statements do not have the status of sworn evidence which has been tested by cross-examination. Unlike any admissions, any exculpatory statements are not against the accused’s interest and I am entitled to give those statements less weight than admissions. Not all statements in a police interview are of equal value.[51] I must decide what weight I give to Mr Bayer’s statements and I am entitled to give different weight to what was said by Mr Bayer at different times in the interview.
[51]Nguyen v The Queen (2020) 94 ALJR 686; [2020] HCA 23, [24], [59]; Weetra v R (2010) 108 SASR 232; [2010] SASCFC 52, [15] – [18] (White J), [79]-[81] (Peek J); Mule v R (2005) 79 ALJR 1573; [2005] HCA 49, [21]; R v Allen (2011) 109 SASR 396; [2011] SASCFC 40, [25].
111. Mr Bayer also explained in his record of interview at line 214;
“...what happens if he smashed my window and then started ah fighting me, what am I going to do? And at line 216-218, “That’s why I wanted... to get away”.
112. Mr Bayer also claimed, at answer 220, that;
“Yeah but he was right in front of me and I couldn’t turn”.
113. That of course is a patent falsity on the evidence. There was ample opportunity to turn and in fact Mr Bayer straightened up and turned in towards Mr Taylor.
114. I note the record of interview was given some time after the collision. Mr Bayer was in the company of the police and had time to gather his thoughts about what had happened. He was by then aware that the accident was serious and he had been cautioned appropriately.
115. Therefore, I view Mr Bayer’s exculpatory claims in his record of interview of one of convenience after he had had ample time to think about the situation. [Emphasis added]
Bayer’s exculpatory claims generally
A defendant is entitled to earnest consideration of his police interview entirely free from prejudicial assumptions being made by the Court. It is an error to label exculpatory answers and assertions in the interview as “one of convenience” on the basis that the defendant had “had time to gather his thoughts about what had happened … was by then aware that the accident was serious and he had been cautioned appropriately”.
The error here is serious. Bayer at all times strove to communicate and co-operate with the police. He answered all questions that the police wished to put. He did not seek or obtain legal advice. There was no real delay in investigation and interview here – and if there was any delay, it was not Bayer’s fault. He was entitled to gather his thoughts and he never considered that the accident was other than serious.
Analysis of paragraphs [101] to [108] of the Magistrate’s judgment
At paragraphs [101] to [108], the Magistrate states:
101. I reject the claim of a statutory defence or the defence of necessity being raised or proved on the balance of probabilities.
102. I find so, not only on the facts, but because in Mr Bayer’s record of interview he stated at line 56 in an answer to the police;
“I was on phone...I said (to the police) ... can you please stay on the phone, I’m like scared”
103. That is not what Mr Bayer said in the actual recording of the telephone call at 18.02.35-18.02.37.
104. Mr Bayer only said; “No, no. Stay on the phone please.”
105. Mr Bayer did not mention to the SAPOL radio operator about being scared at that time nor any threat to him, let alone peril nor endangerment.
106. Mr Bayer also said after the collision in that recording at 18:02:49-18:02:51; “I hit him ‘cos he ran right in front of me. He was trying to fuckin’ hit me.”
107. Both of those claims are incorrect and untrue. First, Mr Taylor was not trying to hit Mr Bayer, nor his vehicle despite having plenty of opportunity to do so. Mr Taylor did not even get into close proximity of Mr Bayer’s vehicle prior to the collision.
108. Mr Taylor was never in a position to physically hit Mr Bayer himself whilst Mr Bayer was in the driver’s seat of his vehicle. …
The Magistrate suggests at paragraphs [101] to [104] that part of Answer 56 in the police interview is a statement by Bayer that he had said to the first telephonist “I’m like scared” when such statement does not appear in the audio recording of the first triple zero call.
To address that matter, it is best to first note that Bayer’s full answer at Answer 56 (as heard on the DVD exhibit P6) is as follows: [52]
And then I told the lady and that cos I was stressed out, I didn’t know what to do and all that.
And then he left so I followed him and I was on the phone to her.
And then we went down John Rice and then oh, the, ah, he was ah stopped to turn Right onto Haydown Road and I was on the phone to the, to lady and I said can, can you please stay on the phone, [she’s like I’ve got to go and I said can you stay on the phone][53] I’m like scared and all this.
[52] Quotation marks are intentionally omitted.
[53] The words in [square brackets] are to be heard on the DVD exbibit P6 but are incorrectly omitted from an aide memoire transcript used at trial.
Thus, although not referred to in his Honour’s judgment, Answer 56 starts with Bayer explaining why he was talking with the first telephonist – “cos (because) he was stressed out and didn’t know what to do”. The balance of Answer 56 is long and rambling. It is likely that Bayer was speaking loosely here and simply attempting to convey that he was asking the first telephonist to stay on the line because he was scared (or stressed out) without necessarily meaning to convey that he had actually said as much to her. That, of course, would be consistent with the first line of his answer (“And then I told the lady and that cos I was stressed out” - omitted in the Magistrate’s judgment).
In other words, if at the time of the first triple zero call Bayer was scared of what Taylor might do, and his background intention was to request help from the first telephonist because of that fear, it would have been very difficult for Bayer when later speaking to Clarke in the interview, to remember precisely what he had said to that first telephonist under such circumstances of high stress. All in all, I consider that the Magistrate makes too much of this rather inconsequential matter.
At paragraph [105], the Magistrate states that “Mr Bayer did not mention to the SAPOL radio operator about being scared at that time nor any threat to him, let alone peril nor endangerment”. This appears to be a process of comparing the first triple zero call (wherein his Honour asserts that there was no complaint about being scared at that time) with the later police interview (where Bayer did clearly complain of being scared of Taylor); and presumably to then call into question the veracity of Bayer’s statements in the police interview on the basis that he had not previously made a claim of fear.
This process is misguided for several reasons. First, arguments to the effect that a later statement is false because it was not made earlier are often problematic not the least because they are dependent upon an assumption that a person in the position of the defendant would have made the statement earlier if it were true. In the present case, that logical premise is missing because the only available earlier occasion was the pair of triple zero calls. Such calls are very different from the taking of a detailed statement. The eventual content depends very much upon the telephonists who operate under severe time constraints and are primarily concerned with the obtaining of solid information (of the “who, what, when and where” variety) which can be actioned forthwith.
Secondly, in any event, in the first triple zero call immediately after the muffled sound of the subject collision, Bayer plainly stated: “I hit him ‘cos he ran right in front of me. He was trying to fuckin’ get me”. This clearly evinces a claim made at the earliest possible time after the subject collision that Bayer did fear that Taylor was a threat to his safety.
I note that the Magistrate refers to this statement at his paragraph [106] but he incorrectly reproduces it as “He was trying to fuckin’ hit me”. His Honour then proceeds to argue at paragraphs [107] to [108] that Taylor did not actually try to hit Bayer (or the Commodore) and was not in a position to do so.
However, in saying that “He was trying to fuckin’ get me”, Bayer was clearly not claiming that Taylor did in fact hit him or his Commodore. What he was clearly suggesting was that Taylor, in his then angry and aggressive state, was moving toward the Commodore in a threatening manner. This suggestion as to fear of what Taylor might do was consistent with what he later said in his police interview:
B: (He) was in front of me and he got out his car and he was starting to like and he wanted to like try and have a fight or something. … So I put my car in reverse and I went straight back. …
C: So, so you said, you said before that obviously prior to him being hit by your car that you, `you started to reverse cos you felt scared’.
B: (Because) he was coming towards me, he was like with, with attitude like that – and he was like “come on whats going on” like that. … he could’ve, he could’ve smashed my window. … that’s why I wanted to get away.
C: But you’ve already called Police though haven’t you?
B: Yeah but the Police weren’t around, what happens if he smashed my widow and then started ah fighting me, what am I going to do?
Finally, it may be noted that the Magistrate makes no reference to Bayer’s conversation with the second telephonist which commenced only about five minutes after the first telephonist terminated the first call (against Bayer’s wishes). Amongst his conversation with the second telephonist appears the following:
… I’m pretty shaken up. … I just live around the corner, just by the hospital so that’s why I drove around the corner and parked there at my house. I even told the lady on the phone that. … I, uh, I didn’t want to be there just in case what happened. [Clearly meaning “what might happen to him” if Taylor continued to behave aggressively].
An ex post facto assessment of the threat posed by Taylor
A further difficulty with the Magistrate’s approach was that, more than once, he emphasised the incapacitated physical state of Taylor after the subject collision and thereby inferred that Taylor in fact posed no threat to Bayer. Taken by itself, that was not illogical. However, his Honour then appears to proceed further and to infer, or assume, that Bayer was aware of that incapacity. Thus, his Honour stated:
97. Given the evidence and from viewing the videos, I infer Mr Taylor was incapable of standing let alone being a further threat to Mr Bayer. The impact of the collision is captured on video of P1 would cause a reasonable person in the driver’s position to think that serious injuries had occurred.
98. Had Mr Bayer looked in his rear-view mirror he would have seen Mr Taylor spinning through the air horizontally in a clockwise direction before hitting roadway.
However, one cannot assume that at the split second of impact a driver sees all (or any) of what a dashcam sees and records. Indeed, as his Honour recognises at paragraph [98], it would have been necessary for Bayer to look around, or look in his rear-view mirror, to gain a full appreciation of what had happened – but there is no evidence that he did so.
It is sufficient to emphasise that the requirement in the defence provision RTA s 43(3)(b)(i) is relevantly that “the defendant genuinely believed on reasonable grounds that compliance with subsection (1)(a) would endanger the defendant’s physical safety …”. This does not require the defendant to prove that there was in fact a danger to his safety, but only that he genuinely believed that to be so. Of course, the defendant must be able to ascribe reasonable grounds for the holding of such a belief but, if he does so, such reasonable grounds will not be logically nullified by an argument that if he had in fact not left the scene, he would have gleaned other knowledge (ie, that Taylor was in fact incapacitated).
I conclude that the cumulative effect of the above passages in the judgment is to raise real concern as to whether the Magistrate adopted a correct approach to the matter of whether the defendant had proven a defence open to him. Accordingly, the Magistrate’s finding that the charge in Count 2 is established must be set aside.
Disposition of the appeal
As to Count 1, I have found that the evidence does not prove the charge particularised as “reckless driving”; and nor would it prove a charge of “driving in a manner dangerous”. However, I have found that the statutory alternative charge of Careless Driving contrary to RTA s 45 is established. Accordingly, the conviction, sentence and disqualification of driver’s licence imposed on Count 1 are all set aside. In lieu thereof, a conviction is substituted of Careless Driving contrary to s 45 of the Road Traffic Act 1961 in that: “Christopher Geoffrey Bayer on the 28th day of June 2019 at Elizabeth Vale in the State of South Australia, drove a motor vehicle on a road namely John Rice Avenue without due care or attention”.
I consider that the appropriate penalty for the substituted offence of Careless Driving in all of the circumstances is that a conviction be recorded[54] and that pursuant to the Sentencing Act 2017, Mr Bayer enter into a bond to be of good behaviour for a period of one year starting from today in the amount of $500. If I had been sentencing for this substituted offence at first instance, I would also have ordered pursuant to RTA s 168(1)(c) that Bayer be disqualified from holding or obtaining a driver’s licence for a period of six months. However, as he has already served just over six months disqualification I make no further order.
[54] I have considered the facts and circumstances relevant to my discretion not to record a conviction. I consider that a conviction should be recorded.
I should add that since I have quashed the original convictions on both Counts 1 and 2, and also the original disqualifications from holding or obtaining a driver’s licence imposed by the Magistrate, it is my view that CLC Act ss 19A(6)(a) and 19AB(5)(a) do not apply in the circumstances of this case. However, an issue may possibly arise concerning the records of the Registrar and I will draw counsels’ attention to that possibility on the handing down of this judgment.
As to Count 2, for the reasons given above, the conviction together with the sentence of imprisonment and the concurrent licence disqualification must be set aside. While it may be arguable that the errors made by the Magistrate could lead to a re-trial rather than a dismissal, it is plain that it would be unduly oppressive to order a re-trial concerning Count 2 alone having regard to all of the facts and circumstances, including the following:
-The appellant has no previous offending alleged against him and is of good character.
-The case at trial very largely concentrated upon Count 1. That charge is now disposed of and no re-trial on Count 1 is ordered.
-The Magistrate’s ultimate rejection of the appellant’s defence at trial on Count 2 was due to errors of approach for which Bayer is not responsible.
-The prosecution case on Count 2 for a breach of CLC Act s 19AB is at the lower end of seriousness in that:
oBayer immediately reported the accident to the first telephonist at the very moment it happened (and again to the second telephonist a few minutes later).
oBayer’s position was that he was in fear of what Taylor might do to him if he remained at the scene and there was objective evidence (referred to above) supporting the reasonableness of that position.
oBayer understood the first telephonist to be advising him to go home (he furnished the address which was only 500 metres from the site of the subject collision) and the second telephonist positively advised Bayer to stay at home until police arrived there.
oBayer stayed at home awaiting the police arrival. Police arrived at Bayer’s home shortly after the second triple zero call and Bayer fully co-operated with them.
-I consider that it is unlikely that Bayer would be found guilty at a re-trial concerning Count 2 alone in which the law and the evidence pertaining to that charge were to be correctly analysed.
-The Magistrate on sentencing for Count 2 imposed a non-custodial sentence and it could not be suggested that a custodial sentence could or should be imposed if Bayer were to be convicted of this charge after a re-trial.
-The charge in Count 2 is now stale, the alleged offence date being more than two years ago; by the time of a re-trial, the charge would by then have hung over the appellant for about three years, an inordinate period of time with associated features of worry, inconvenience and an interference with his personal and business affairs.[55]
[55] Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, [51].
Accordingly, the appropriate disposition is that Count 2 of the Information be dismissed with no order for a re-trial.
I allow the appeal and make the following orders:
1.The appeal against conviction is allowed in relation to Counts 1 and 2.
2.On Count 1, the conviction, the sentence of imprisonment, the bond and the driver’s licence suspension for one year (concurrent with that imposed on Count 2) are all set aside. They are substituted by a conviction for the offence of Careless Driving contrary to Section 45 of the Road Traffic Act 1961 in that Christopher Geoffrey Bayer on the 28th day of June 2019 at Elizabeth Vale in the State of South Australia, drove a motor vehicle on a road, namely John Rice Avenue, without due care or attention.
3.On the substituted conviction for Careless Driving contrary to Section 45 of the Road Traffic Act 1961, the appellant is to enter into a bond to be of good behaviour for a period of one year starting from today in the amount of $500.
4.As to Count 2, the conviction, the sentence of imprisonment, the bond and the driver’s licence suspension for one year (concurrent with that imposed on Count 1) are all set aside. Count 2 of the Information is dismissed without re-trial.
I will hear the parties as to costs of the trial and appeal.
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