Brown v Lucas - [2011] WASC 356

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BROWN -v- LUCAS [2011] WASC 356

CORAM: HALL J

HEARD: 25 JULY 2011

DELIVERED : 21 DECEMBER 2011

FILE NO/S: SJA 1023 of 2011

BETWEEN: IAN GORDON BROWN
Appellant
AND
BENJAMIN MURRAY LUCAS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE WHEELER
File No  :MI 11926 of 2010

Catchwords:

Criminal law - Appeal from conviction for dangerous driving causing grievous bodily harm - Collision at give-way line at intersection - Complainant on stationary motorcycle - Appellant's truck collided into the back of the complainant's motorcycle - Whether open to magistrate to conclude that the appellant had an opportunity to know of the presence of the complainant's motorcycle prior to the collision - Whether appellant had been driving with appropriate attention - Turns on own facts

Legislation:

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

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J A Davies
Respondent: Mr M Seaman

Solicitors:

Appellant: Jonathan A Davies
Respondent: Director of Public Prosecutions (WA)

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

Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44
McPherson v Lucas [2008] WASCA 56; (2008) 181 A Crim R 587
Peacock v Jones [2010] WASC 358
R v Coventry [1938] HCA 31; (1938) 59 CLR 633
Re Her Honour Judge Schoombee; Ex parte Attorney General for Western Australia [2011] WASCA 129

HALL J: On 9 February 2011 the appellant was convicted in the Magistrates Court on one count of dangerous driving causing grievous bodily harm, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) (RTA). That conviction followed a trial between 7 and 9 February 2011. The magistrate imposed a fine of $2,000 together with costs and made an order for disqualification from driving for two years. The appellant appeals against his conviction.
The uncontested facts were that on the afternoon of 7 December 2009 the appellant had driven a truck from the premises of Midland Brick north on Great Northern Highway, Middle Swan. As the appellant approached the intersection of Great Northern Highway and Middle Swan Road, he slowed and stopped his vehicle with the intention of turning left. The intersection is constituted by a roundabout. Ahead of the appellant was a motorcycle which was stopped at the give‑way line. The motorcycle was being ridden by Robert James Pope (Sergeant Pope), an off‑duty police officer.
After pausing for a short time, the truck driven by the appellant moved forward with the intention of driving into the roundabout. As it did so it collided with the motorcycle which was still stationary. The truck continued to move forward, knocking over the motorcycle and trapping Sergeant Pope, who ended up underneath the truck.
The only issue at trial was whether the manner of driving…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Brown v Lucas

Details

AGLC: Brown v Lucas [2011] WASC 356
Case: [2011] WASC 356
Decision Date: 21 DECEMBER 2011

CaseChat Overview and Summary

In the matter of Brown v Lucas, the appellant, Brown, was convicted of dangerous driving causing grievous bodily harm following a collision at an intersection. The complainant, Lucas, was riding a stationary motorcycle at a give-way line when Brown's truck collided into the back of the motorcycle. Brown appealed against his conviction and sentence, arguing that the magistrate's decision was not supported by the evidence and that he had not been driving dangerously. The appeal was heard in the Supreme Court of Victoria.
The court was required to consider two primary legal issues. Firstly, whether it was open to the magistrate to conclude that Brown had an opportunity to know of the presence of Lucas's motorcycle prior to the collision. Secondly, whether Brown had been driving with appropriate attention at the time of the collision. The court needed to determine if the magistrate's decision was based on evidence and whether it was open to the magistrate to reach the conclusion that Brown had been driving dangerously.
The court held that it was open to the magistrate to conclude that Brown had an opportunity to know of the presence of Lucas's motorcycle prior to the collision. The court found that the evidence showed that Brown had not been driving with appropriate attention, as he had failed to observe Lucas's motorcycle and had not taken steps to avoid the collision. The court held that the magistrate's decision was supported by the evidence and that it was open to the magistrate to conclude that Brown had been driving dangerously. The appeal was dismissed, and the conviction and sentence were upheld.

No additional orders were made.

Orders