Bleechmore v Keating
[2008] WASC 309
•18 DECEMBER 2008
BLEECHMORE -v- KEATING [2008] WASC 309
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 309 | |
| Case No: | SJA:1072/2008 | 18 DECEMBER 2008 | |
| Coram: | HASLUCK J | 17/12/08 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | TIMOTHY ROY BLEECHMORE CAROLINE JANE KEATING |
Catchwords: | Criminal law Charge of dangerous driving causing bodily harm Site of collision subject to road work Truck driver with load of cattle required to stop in response to signal from road worker Nature and elements of dangerous driving offence Whether magistrate found charge proved on a different basis than that put by prosecution Whether evidence concerning possible brake failure raised a reasonable doubt Finding that appellant suffered no procedural prejudice sufficient to negate defence Appeal dismissed Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA) Road Traffic Act 1974 (WA), s 59A(1)(a)(b) |
Case References: | Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gamage v The State of Western Australia [2008] WASCA 49 Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32 Jiminez v The Queen (1992) 173 CLR 572 Kaighin v The Queen (1990) 1 WAR 390 McPherson v Lucas [2008] WASCA 56 Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
CAROLINE JANE KEATING
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T J McINTYRE
File No : MH 2803 of 2008
Catchwords:
Criminal law - Charge of dangerous driving causing bodily harm - Site of collision subject to road work - Truck driver with load of cattle required to stop in response to signal from road worker - Nature and elements of dangerous driving offence - Whether magistrate found charge proved on a different basis than that put by prosecution - Whether evidence concerning possible brake failure raised a reasonable doubt - Finding that appellant suffered no procedural prejudice sufficient to negate defence - Appeal dismissed - Turns on own facts
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA)
Road Traffic Act 1974 (WA), s 59A(1)(a)(b)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr E J Myers
Respondent : Mr E Heenan
Solicitors:
Appellant : Edward John Myers
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gamage v The State of Western Australia [2008] WASCA 49
Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32
Jiminez v The Queen (1992) 173 CLR 572
Kaighin v The Queen (1990) 1 WAR 390
McPherson v Lucas [2008] WASCA 56
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
(Page 3)
- HASLUCK J:
Introduction
1 The appellant, Timothy Roy Bleechmore, has obtained leave to appeal against a conviction for dangerous driving occasioning bodily harm contrary to s 59A(1)(a)(b) of the Road Traffic Act 1974 (WA). I will turn to the grounds of appeal shortly. However, it will be useful to commence by looking at the background to the matter.
2 By prosecution notice dated 28 March 2008 the appellant was charged that on 14 June 2007 at Waroona he drove a motor vehicle on a road, namely South Western Highway, in a manner that was, having regard to all the circumstances, dangerous to the public or any person, and was involved in an incident occasioning bodily harm to Daniel Reginald Finnamore, contrary to s 59A(1)(b) of the Road Traffic Act.
3 Section 59A(1)(b) of the Road Traffic Act provides that if a motor vehicle driven by a person who is involved in an incident occasioning bodily harm to another person and the driver was at the time of the incident driving the motor vehicle in a manner, which expression includes speed, that is, having regard to all the circumstances of the case, dangerous to the public or to any person, the driver commits an offence.
The hearing
4 The matter was brought on for hearing in the Magistrates Court of Western Australia at Mandurah on Monday, 4 August 2008, before his Honour Magistrate McIntyre. At the commencement of the hearing the prosecutor was invited to provide a brief outline of the prosecution case. In doing so, the prosecutor asserted that there were roadworks taking place on South West Highway just out of Waroona. The appellant was allegedly driving a Volvo prime mover with a B double trailer loaded with cattle. The complainant, Daniel Finnamore, was acting as a 'lollypop' man at the end of the road works; that is, on the prosecution case, the complainant was standing in the middle of the road with a sign saying 'Stop'. The appellant was unable to stop and ran over the complainant causing certain injuries.
5 It is apparent from the transcript of the hearing that it was common ground that the appellant was driving the truck at the time of the incident and the injuries sustained by the complainant amounted to bodily harm.
6 The evidence adduced by the prosecution included the evidence of Senior Constable Cools, who was attached to the Waroona police station
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- at the relevant time. He attended the incident on South West Highway and took a statement from the appellant which was adduced in evidence in support of the prosecution case.
7 It will not be necessary to traverse the appellant's statement in its entirety. In essence, the appellant said that he was 45 years of age, self-employed as a farmer and residing at Boyup Brook. On 13 June 2007 he left his farm in order to go to Geraldton to pick up 90 head of cattle. Before leaving home he conducted a check of his Volvo truck, including a check of the brakes. He loaded cattle in Geraldton on the evening of that day and began driving home. He slept in the truck after stopping at the halfway Mill Roadhouse and resumed his journey at 7 am the next morning.
8 The appellant said that at about 10.30 am he left Byford and drove in a southerly direction on South West Highway, continuing through Pinjarra and Waroona. He said that at about 8 km south of Waroona he saw some roadwork signs indicating for motorists to slow down. He slowed down accordingly and when he saw the stop-go sign and the stop-go person with a sign standing in the middle of the road he continued to slow down to about 50 to 60 kilometres per hour. The statement continued as follows:
I was about 150 metres away from him when he turned the sign to stop for southbound traffic. I continued slowing down as I approached him. I was the first vehicle in line and I saw the male person with the go-stop in his hand turn his back on me. It appeared that he was talking on a two-way radio. He was wearing a fluorescent orange vest and was clearly visible.
As I was coming to a stop I realised that I didn't have the braking distance to come to a complete stop. I tried to find the horn but couldn't find it. I tried to take evasive action and turned the truck to the right to go around the person, because his vehicle was parked on the left hand side of the road and there wasn't enough room for me to pass.
I was about 10 metres away from the stop-go person when I realised that I was not going to be able to avoid him. I was travelling at about 10 to 15 kilometres an hour at this time. I was continuing to apply pressure to the brakes, but the truck was just not going to stop. As I was swerving to the right the stop-go man appeared to move sideways towards the other lane. The bullbar of my truck collided with the stop-go man at about the middle of the truck and I saw him go under the truck.
I managed to stop about five metres further on to the right hand side of the centre of the road. I immediately got out of the truck and located the male person under the truck just behind the front axle. He was conscious at the time and managed to get out from under the truck between the front wheel and the fuel tank.
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9 The appellant went on to describe the arrangements made to assist the injured person. He said further that he had been driving trucks for the past 28 years and considered himself competent as a driver. The traffic conditions were light and the weather was fine. He was not tired in any way. He said further that he felt that he was not given enough braking distance due to the downhill slope. He said the incident would not have occurred if the stop sign attendant actually looked at him after having turned his sign to the stop marking.
Witnesses
10 The prosecution adduced evidence from Peter William Gasic, who was the maintenance manager employed by Main Roads. He measured and sketched the scene of the crash. Documents and photographs of the crash site formed part of the prosecution case.
11 Police Officers Keating and Cools gave evidence about the police investigation and confirmed that the police did not arrange for a formal examination of the truck.
12 The complainant Daniel Finnamore gave evidence also to the effect that as at 14 June 2007 he was employed as a traffic controller for SJ Roadworks. He described the signage put out on the day in question. He said that he saw a truck coming over the hill towards the roadworks on the day in question. He radioed through to the south-bound driver to say that he would have to hold him up, and he assumed the driver heard him because he heard his exhaust brakes come on. He then started to split his attention between the oncoming truck, the driveway that was in the middle of the work site and keeping an eye on his offsider, who was fairly new to the job.
13 The next thing he remembered was holding onto a bar underneath the truck. The work being done was running some hot mix over a road where there was a depression. These witnesses were cross-examined by counsel for the appellant.
14 The prosecution adduced evidence also from Grant Colin Keith who said that on the day in question he was travelling south not far out of Waroona and was following a fully loaded cattle truck. As he came over the brow of the hill he saw a road worker ahead with a stop sign and started to slow down. He noticed that the truck ahead of him was not slowing down as quickly as he was. He noticed that the truck had come past the point where he anticipated the road worker was standing. It then swerved right into the northbound lane and stopped.
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15 Mr Keith assumed the road worker had been hit. He said that when he first saw the road worker he looked to be about a couple of hundred metres away. At the scene after the incident, the truck driver said to him, (Mr Keith), that he did not feel he was paying attention to the road and what was up ahead. Mr Keith was cross examined also.
The appellant's evidence
16 The appellant gave evidence which contained some elaboration of the matters referred to in his statement. He said that prior to 14 June 2007 he had driven about 5,000 kilometres in the subject truck but had not had any cause to brake in an emergency situation. He was travelling at about 95 kph on the South West Highway. He had reduced speed after seeing the 80 kph and 60 kph signs.
17 The appellant said that when he took his foot off the accelerator which brings on the exhaust brake he could see signs to the effect, 'Reduce speed, road workers ahead' and further on down there was a road worker with his sign. He was standing in the middle of the road, holding his sign. He was between 100 and 150 metres when he turned the sign to stop. The appellant proceeded to slow down by braking normally.
18 The appellant said:
As I got to about 15 to 20 metres away I realised that I was still travelling too fast. I was unable to - well, I realised I wasn't going to be able to stop in time. (ts 30)
19 Under cross-examination the appellant said that he saw the 80 kph and 60 kph signs and the 'Prepare to stop' sign. He first saw the complainant when he, the appellant, came over the top of a hill.
20 It was put to the appellant that he did not see and had no intention of stopping because he was driving through the roadworks. The magistrate intervened at that moment with the result that the question was not put in that form eventually. It was eventually put to the appellant under cross-examination at ts 37 that he could not stop in time because he was not paying attention and did not see the complainant until the last minute. The appellant denied that assertion by saying, 'That's not correct.' He denied that it was his lack of concentration that caused the collision.
21 The defence adduced evidence also from Stuart McDermott, who was the workshop supervisor at the Truck Centre in Bunbury and a skilled motor vehicle mechanic on heavy vehicles. He had worked on Volvo vehicles since his apprenticeship in 1979 in England and Australia.
(Page 7)
22 Mr McDermott acknowledged that he had not inspected the vehicle in question. However, through him a copy of an invoice concerning brake repair for the vehicle was adduced in evidence. Mr McDermott gave evidence to the effect that a vehicle of the kind in question, if the driver was alert and the road flat and dry, would stop safely within a distance of 100 to 150 metres.
Closing submissions
23 In the course of his closing address, the prosecutor made these observations.
The prosecution would suggest that it was because of his lack of attention to the conditions of the road at the time. He acknowledged that he has seen the 80 and started to slow down. He saw the 60, he started to slow down. He says that he was only 100 to 150 metres away when Mr Finnamore changed from 'slow' to 'stop'. By the evidence of his own witness, under normal circumstances a B-double would normally stop safely within those distances without having to undergo an emergency stop. He says if you did an emergency stop that distance would be even less.
We would suggest, sir, that on the evidence that you have seen Mr Bleechmore's inattention on the conditions and what was happening on the road caused this accident or this crash which inflicted the injuries on Mr Finnamore and the prosecution has proved its case.
24 Defence counsel on behalf of the appellant referred to evidence that the appellant was a careful driver, had checked his vehicle and had observed the correct periods of rest. He de-accelerated after seeing the reduced speed sign. Counsel noted that the burden of proof lay upon the prosecution to exclude mechanical defect as a cause to the accident, but this had not been done beyond reasonable doubt in the present case. Moreover, there was some evidence, having regard to the McDermott evidence, of a deviation from the standard required by Volvo in relation to the brake levers on the vehicle.
25 Counsel submitted in relation to the evidence of Mr Keith that any reference to a lack of attention may have been misunderstood, and the reference may have been to the complainant not paying attention in that he probably turned his back on the approaching truck.
26 Defence counsel submitted that, having regard to the reasoning of the Court of Appeal in McPherson v Lucas [2008] WASCA 56, the allegation of dangerous driving had not been made out.
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Reasons for decision
27 The learned magistrate in his reasons for decision referred to a number of decided cases to the effect that the test of dangerous driving is an objective test. In essence, it requires a serious breach which is in reality and not speculatively a real or potential danger to other road users.
28 His Honour went on to refer to the circumstances of the accident and to summarise the evidence. He noted that Mr Keith rejected any assertion that the accused said that the man who was holding the sign was not paying attention. He noted also that the appellant had said it was not an emergency stop but a controlled stop.
29 His Honour said further that in view of the stress and the trauma associated with the incident he was not prepared to make a positive finding that the appellant made the alleged comment to Mr Keith. His Honour described the appellant's statement as a clear, coherent and detailed account of the events on the day in question.
30 His Honour noted that the prosecution case was regularly put to the appellant in the course of his cross-examination, that is to say it was put to him that he did not see the road worker until it was too late for him to bring his truck to a halt, being an assertion denied by the appellant.
31 His Honour referred to the evidence of Mr McDermott that if the brakes were outside the minimum Volvo standards it could have resulted in a significant increase in braking distances. This created an issue as to whether the prosecution had negated beyond reasonable doubt the evidence of Mr McDermott that the brake problem may have contributed to the incident, notwithstanding that there was very little from the defence evidence that suggested brake failure may have played a part.
32 In his Honour's view Mr McDermott was placed in a position where he could do no more than speculate. In his view, taken at its highest, the McDermott evidence did not establish good grounds for holding that a brake failure contributed to the incident. Such a view was based on the imprecise documentation upon which the evidence was based and the fact that McDermott had not examined the vehicle itself, the failure of the accused to mention the brake failure in his statement to the police, the failure of any alleged problem to manifest itself during the earlier driving on the trip both to and from Geraldton, the failure of any problem to manifest itself after the incident of 14 June. The invoice produced in evidence indicated that the brake check was incidental to the major reason
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- why the truck was taken to the Truck Centre, namely a broken input shaft in the gearbox.
33 Finally, it was said of matters raised at the hearing that there had been a lack of any real specific assertion by the appellant that brake failure was a contributor to the incident. The learned magistrate was therefore satisfied that a brake failure had played no part in the incident.
34 His Honour then concluded that the prosecution had proved beyond reasonable doubt that the appellant was driving dangerously and that he failed to have adequate regard to the warnings or his obligation to stop and failed to brake or take other appropriate actions to avoid contact with the complainant who was competently carrying out his duties.
35 His Honour made these observations:
Contrary to the way in which the prosecution case was put before the accused, I am satisfied that Mr Bleechmore did see Mr Finnamore as Mr Bleechmore alleges, but having made that observation he failed to properly assess the speed of his vehicle, the prevailing road conditions, the required braking distance and other factors which in the result combined to create a course of conduct which was objectively dangerous. Despite all the appropriate and adequate warnings Mr Bleechmore simply failed to brake in time and therefore could not pull his truck up before it struck Mr Finnamore. (ts 64)
36 His Honour then proceeded to impose of fine $1,500 with costs of $297. A licence disqualification of 15 months was imposed also.
Appeal notice
37 By an appeal notice dated 28 August 2008, the appellant applied for leave to appeal against the conviction upon the following grounds:
1. The magistrate found the charge proved on the basis that the appellant failed to brake properly and failed to properly assess the situation, which was not the case that the prosecution presented to the appellant to meet, in that the prosecution alleged that the reason the appellant's vehicle collided with Mr Finnamore was that the appellant was not paying sufficient attention to the road.
2. The magistrate erred in failing to find that the evidence gave rise to a reasonable possibility that a defect to the truck braking system unknown to the appellant was the cause of the collision between the appellant and Mr Finnamore
2.1 when the evidence gave rise to (sic) such a mechanical failure was a reasonable possibility
- 2.2 the magistrate should not have been satisfied that the charge had been proven beyond reasonable doubt when the prosecution had failed to adduce evidence of the mechanical condition of the vehicle at any relevant time.
- 3. The magistrate had prejudged the issue of whether the evidence led by the appellant was sufficient to give rise to a reasonable possibility that an unknown mechanical defect to the vehicle's brakes was the cause of the collision between the appellant's vehicle and Mr Finnamore.
38 Leave to appeal was obtained pursuant to orders made by McKechnie J on 7 October 2008 in respect of the grounds specified in the appeal notice.
39 Before dealing with the grounds of appeal it will be useful to look at the legal principles and statutory provisions bearing upon the matters in issue.
Principles and provisions
40 Appeals from the Magistrates Court are now governed by the Criminal Appeals Act 2004 (WA). By s 14 of that Act, the Supreme Court may dismiss or allow the appeal or set aside or vary the decision or remit the case for rehearing. Further, if the court considers that no substantial miscarriage of justice has occurred it may dismiss the appeal, notwithstanding that a ground of appeal has been decided in favour of the appellant.
41 It is apparent from s 39 of the Criminal Appeals Act that an appeal court must decide the appeal on the evidence and material that were before the lower court, but this does not prevent consideration of any evidence that the lower court refused to admit. By s 40 an appeal court may admit any other evidence.
42 A magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32.
43 As to the nature of dangerous driving the decided cases indicate that negligence is not an element of dangerous driving; negligent driving is not necessarily dangerous driving. Thus failure to keep a proper lookout on the road on which there is no other traffic and there is no person in the vicinity is not dangerous driving. For the driving to be dangerous, it must
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- in reality and not speculatively be actually or potentially dangerous for the public or another person. The test as to whether driving is dangerous is objective. A momentary lapse of attention may constitute dangerous driving:. See Kaighin v The Queen (1990) 1 WAR 390.
44 The law on the subject was recently considered at some length in McPherson v Lucas. McLure J observed at [24] that an offence under s 59A is not established by demonstrating that the incident resulting in bodily harm was caused by the driver failing to drive with due care and attention. She approved the reasoning of the High Court in Jiminez v The Queen (1992) 173 CLR 572 at 579, where it was said the manner of driving encompasses all matters connected with the management and control of a car by a driver when it is being driven. For the driving to be dangerous there must be some feature which is identified not as a lack of care, but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may on occasions drive with less than due care and attention.
45 Her Honour went on to note that the Road Traffic Act differentiates between dangerous driving and careless driving. If it were otherwise all breaches of a tortious nature would cause the inevitable risk of harm to the public associated with driving a motor vehicle constituting dangerous driving. Her Honour then made further observations at [31] to the effect that the relevant fact in issue is the actual driving behaviour of the driver. The objective physical movement of the car is only a fact from which an inference about the actual driving behaviour of the driver can often but not always be drawn. It will most often be drawn when the driving is intrinsically dangerous, regardless of the circumstances. It will be drawn less often when the quality of the driving depends on the surrounding circumstances.
46 Her Honour said that the correct position is that it is necessary to first make factual findings as to the actual driving behaviour of the driver. Whether or not the driver looked for oncoming traffic is part of the manner of driving and is relevant. The objective question is whether the manner of driving so found on the facts has the necessary quality of being dangerous to the public. In making this objective assessment regard is to be had as to what the driver knew or ought reasonably to have known.
The first ground of appeal
47 The first ground of appeal raises the question of whether the learned magistrate convicted the appellant on a case other than the one advanced
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- by the prosecution and, if so, whether this resulted in a substantial miscarriage of justice.
48 Counsel for the appellant submitted that the prosecution case against the appellant as it could be divined from the disclosure of prosecution witness statements prior to trial, and as put to the appellant in cross-examination, and as stated in the prosecutor's closing address, advanced facts and matters that differed from those ultimately relied upon by the magistrate in convicting the appellant.
49 Counsel contended that at the hearing the prosecution case was essentially that the appellant's manner of driving was dangerous and that he failed to see the complainant until he was 100 to 150 metres from him. He treated the roadwork signs as a normal roadwork area where you slow down and drive through it. He had no intention of stopping. He first saw the complainant 100 metres away from him and saw him at the last minute. Further, the prosecution relied on the evidence of Mr Keith, who said the appellant had said immediately after the collision, 'He didn't feel he was paying attention to the road and what was up ahead.'
50 Counsel for the appellant placed some emphasis upon that passage in the magistrate's reasons for decision mentioned earlier in which his Honour said that, 'contrary to the way in which the prosecution case was put', he was satisfied that the appellant saw the complainant as alleged by the appellant, but having made that observation he failed to properly assess the prevailing road conditions, the required braking distance and other factors which resulted in a course of conduct that could be characterised as objectively dangerous.
51 It was said that the magistrate did not identify how the appellant failed to assess the prevailing road conditions or what were the other factors that caused him to find dangerous driving, these being matters which were not put to the appellant in cross examination. It was said by counsel that the finding that the appellant failed to properly assess the required braking distance after having seen the complainant was not the case brought by the prosecution.
52 It is true that introduction by a trial judge of an alternative base for the accused's liability at a late stage in a trial, after which the defence has had no chance to address it, may constitute a procedural irregularity serious enough to produce a miscarriage of justice.
53 However, to my mind this was not a case where the appellant was convicted on findings of fact different from the hypothesis or premise
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- constituting the prosecution case. The thrust of the prosecution case was to be found in the details of the alleged offence contained in the prosecution notice and in the prosecutor's opening address, which was expressed in general terms, namely that the appellant drove dangerously in failing to stop in response to the stop sign.
54 The prosecutor's closing address can be regarded as a drawing together of the various facts and matters being relied upon which were said to be sufficient to warrant a conviction.
55 I am of the view that when the matter is considered in this light the appellant can be taken to have had adequate notice of the issues that had to be addressed, being issues of the kind ultimately reflected in the magistrate's reasons for decision.
56 The central feature of the prosecution case throughout went to an objective appraisal of how the driving was done, namely that the appellant failed to brake and stop in response to a stop sign. This was reflected in the magistrate's central finding at ts 64 that the appellant 'simply failed to brake in time and therefore could not pull up his truck before it struck Mr Finnamore'. In essence, the appellant had misjudged the stopping distance.
57 To my mind, it cannot be said that the prosecution was relying exclusively or substantially upon the alleged admission made by the appellant to Mr Keith. That was simply one facet of the case being advanced by the prosecution which ultimately was held by the learned magistrate to not be a crucial point or decisive. It was a part of the mosaic of evidence.
58 Further, I do not consider that the learned magistrate's use of the words 'contrary to the way in which the prosecution case was put' can be regarded as an assertion that the magistrate was disregarding the prosecution case reflected in the prosecution notice and in the prosecutor's opening and closing addresses. To my mind, the learned magistrate's assertion was of a kind often made in the course of a judgment in which the judicial officer indicates that he is proposing to formulate the issue to be decided in a different and perhaps a more precise or productive way.
59 In the end I am of the view that there is nothing in the learned magistrate's reasons for decision sufficient to suggest that he departed from the issues that had been brought before him by the prosecution notice and which were raised during the course of the hearing.
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60 Further, even if the learned magistrate's finding of guilt can be regarded as proceeding from a premise or factual basis markedly different from the prosecution case as outlined or advanced, I do not consider that any miscarriage of justice has resulted.
61 The appellant's defence rested principally upon the notion that a mechanical failure could not be excluded as a cause of the event complained of. On the facts of this case there is no or no sufficient evidence that the appellant's defence to a prosecution case premised on his failure to properly assess his vehicle's speed, braking distance and the road conditions would have been different.
62 Accordingly, in my view, the appellant suffered no procedural prejudice in the conduct of his defence. I do not consider that the appeal should be allowed on this ground.
The second ground of appeal
63 The second ground of appeal raised the question of whether the magistrate erred in failing to find that the evidence gave rise to a reasonable possibility that a defect to the truck's braking system unknown to the appellant was the cause of the collision.
64 In other words, the issue raised by this ground of appeal is whether the prosecution can be regarded as having proved beyond reasonable doubt that the appellant was driving dangerously in circumstances where, on the appellant's submission, the evidence raised a rational hypothesis that a mechanical fault unknown to the appellant caused the collision between the appellant's vehicle and the complainant, and the prosecution failed to exclude that rational hypothesis beyond reasonable doubt.
65 As to this matter, counsel for the appellant referred to evidence that the complainant turned the stop-go sign to stop when the appellant was about 100 to 150 metres away. The appellant applied the brakes to the truck normally when that occurred and said that under normal conditions he would have expected to stop in time. Nonetheless, the brakes were not physically able to pull the truck up in time. Further, there was evidence that the appellant had owned the vehicle for about two months prior to the collision and that the truck had to be re-registered before he purchased it. He had driven the truck for about 5,000 kilometres before the day of the collision and he had had no occasion to brake in an emergency situation.
66 Counsel for the appellant submitted that the evidence from Mr McDermott was not given proper weight, although the magistrate
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- appeared to accept in his reasons McDermott's evidence to the effect that the brakes were outside the Volvo standards and that could result in a significant increase in the braking distance.
67 Counsel referred also to the fact that after the collision the police failed to examine the appellant's vehicle to exclude mechanical fault as the cause of the collision. The brakes were checked about two months after the collision at the Truck Centre in Bunbury. Mr McDermott was the works supervisor at Truck Centre and was able to say from the records that the truck was examined prior to 21 August 2007. He gave evidence that the brake arm travel on the truck should have been in the range 30 mm to 51 mm (ts 49) and the invoice showed a measurement between 40 mm and 60 mm. The effect of the greater range might be to increase the stopping distance of the truck.
68 I pause here to say that, taken at its highest, evidence of McDermott simply pointed to a possibility that mechanical features may have affected the braking and stopping capacity of the truck. However, in my view it was not compelling evidence, given that Mr McDermott himself had not inspected the truck in question. The magistrate recognised that the burden of proof undoubtedly lay upon the prosecution to rule out or negate mechanical failure as an explanation for the collision. However, the absence of compelling evidence pointing to such a failure bears upon the quality and weight of the evidence required to rebut an evidentiary issue of this kind once it was raised by the defence.
69 Let me now draw this together.
70 As to this ground of appeal I remind myself that in an earlier discussion I set out the tenor of the magistrate's reasons for excluding a braking defect as the cause of the collision. To my mind, the weight of evidence was sufficient to underpin the learned magistrate's finding that the defence was ruled out or negated beyond reasonable doubt.
71 The appellant's own evidence was that he had driven the vehicle all day the previous day and that morning without any difficulty in bringing it to a stop. Mr Keith gave evidence that the appellant brought his motor vehicle to a controlled quick stop. Exhibit D was merely evidence that two months after the incident, while the prime mover's gearbox was repaired, the brake arms were found to be within a certain range and the brakes were reset. That the appellant was able to being the vehicle to a complete stop within a short distance of hitting the complainant supports the inference that the brakes were functioning.
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72 Further support for this inference can be drawn from the appellant's failure to mention brake failure in the statement he gave to police immediately after the incident and by his decision to drive the vehicle home later the same day. Further, he made a decision to drive the prime mover on a round trip to Bunbury several weeks later.
73 A mechanical defect unknown to the driver which causes a sudden total loss of control and which is in no way due to any fault of the driver may be a defence to a charge of dangerous driving, that is, where a mechanical defect causes a sudden total loss of control, the person behind the wheel cannot be said to be driving the motor vehicle.
74 It is true also that if the accused puts forward a defence of mechanical defect, the onus remains on the prosecution to rule out or negate that defence beyond reasonable doubt.
75 However, in my view, and having regard to the matters mentioned in the reasons for decision (which are referred to in earlier discussion) and the matters I have just mentioned, I consider that the magistrate did not err in proceeding from the premise, and thus concluding, that mechanical failure had been ruled out and thus it was for him to determine whether the appellant was driving dangerously.
76 The question for the learned magistrate was ultimately whether the prosecution had proved beyond reasonable doubt that the actual manner of driving by the appellant assessed objectively was dangerous to the public or any person, having regard to the principles enunciated by McLure J in Lucas v McPherson.
77 Having ruled out the possibility of mechanical failure as the cause, I consider that the magistrate did not err in concluding that the appellant was driving dangerously and that he misjudged the situation and failed to stop as required by the sign.
The third ground of appeal
78 The issue raised by the third ground of appeal was whether the magistrate had prejudged the issue or whether the evidence led by the appellant was sufficient to give rise to a reasonable possibility that unknown mechanical defect of the vehicle's brakes was the cause of the collision between the appellant's vehicle and the complainant.
79 Counsel for the appellant by his written submissions contended that the magistrate's comments on the evidence of McDermott as it was being
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- adduced, and his subsequent finding, raised a clear inference to a fair minded lay observer of a pre-judgment of the expert evidence and the magistrate's reasons for refusing to accept the reasonable possibility that the defects in the brakes caused the collision.
80 The appellant's line of argument in regard to this ground of appeal appeared to raise the question of whether the magistrate's decision was vitiated by actual or apparent bias in that he prejudged the issue concerning the unknown mechanical defect.
81 Counsel for the appellant in his written submissions relied upon the reasoning in cases such as Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, to the effect that a judicial officer will be disqualified from hearing a case by reason of appearance or bias where, due to events that occurred during the conduct of the trial, there is a firm basis for the parties or the public to entertain a reasonable apprehension that the judge might not bring an impartial or unprejudiced mind to the resolution of the issues. The test is said to be objective and the reasonableness of any suggested apprehension or bias must be considered in the context of ordinary judicial practice.
82 The law on this subject was reviewed recently in this state by the Court of Appeal in Gamage v The State of Western Australia [2008] WASCA 49. These observations were made in that case:
There is no dispute concerning the test be applied when it is alleged that a judge has been or might be actuated by bias. In Webb v R Mason CJ and McHugh J said that the proper test is 'whether fair minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case'. In Johnson v Johnson Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ said that 'the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide'.
It is important to bear in mind that this fair minded lay observer is one who should be taken to have informed himself or herself 'on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances'. [Johnson [53] (Kirby J); Laws v The Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87.]
83 The decided cases, including Gamage, indicate that it is a matter of importance in dealing with an issue of this kind as to whether a complaint
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- in a comprehensive form was voiced at the time the acts complained of occurred. In Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, Brennan, Deane and Gaudron JJ said this:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias has been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known then, if those contents prove unpalatable, attack the judgment of the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment.
By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time that they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or, alternatively, may have refrained from further hearing.
It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.
85 Let me now return to the circumstances of the present case.
86 In my view, examination of the transcript does not suggest that a fair-minded lay observer might reasonably apprehend that the learned magistrate might not bring an impartial and an unprejudiced mind to the case, or that the learned magistrate had prejudged the issue of whether a mechanical defect was the cause of the incident.
87 The rule generally is that a judicial officer sitting alone has greater latitude in questioning and comment than a judicial officer sitting with a jury. In this case there was indeed a protest and one finds that expressed at pages 46 and 47 of the transcript. However, I must keep steadily in mind that the reasoning in Vakauta v Kelly suggests that the absence of a specific and forceful or sustained objection at the time may bear upon the entitlement of the appellant to complain later of actual or apprehended bias.
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88 To my mind, in the present case the initial protest led to the magistrate drawing back and thus the need for a specific or forceful protest abated or was not proceeded with. It therefore seems to me that the decided cases such as Vakauta v Kelly weigh against allowance of the appeal on this ground also. Accordingly, for all of these reasons I do not consider that the appeal should be allowed on the third ground.
Summary
89 In summary then, I have not been persuaded that the appeal should be allowed on any of the grounds of appeal relied upon. Accordingly, the appeal will be dismissed. I will hear from the parties as to whether any further orders or directions are required.
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