Brown v Lucas
[2011] WASC 356
•21 DECEMBER 2011
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 by the appellant was dangerous. It was not disputed that the appellant was the driver of the truck or that the incident as described had occurred with consequential serious injuries to Sergeant Pope. What was disputed was whether the appellant had seen the motorcycle or at least had a reasonable opportunity to do so. This required an assessment of the evidence of the appellant, Sergeant Pope and a number of other witnesses who had been in the vicinity at the relevant time.
There is a single ground of appeal which, together with its particulars, reads as follows:
The learned trial magistrate erred in law and in fact in holding that there was no reasonable alternative explanation on the facts of the case as he found them to be, other than that the collision in which the bodily harm was occasioned was caused by the dangerous driving of the applicant.
Particulars
Having set aside the evidence of the applicant of due care and attention, the learned magistrate also rejected as unreliable the complainant Pope's estimate of the time that the complainant's motorcycle had been stationary at the intersection and in view of the applicant.
There was no other evidence save that of the complainant and the applicant upon which his Honour could make a finding as to the length of such time the applicant had the opportunity to know of the presence of the complainant's motor cycle prior to the collision.
His Honour could not therefore exclude the reasonable possibility that the applicant did not have adequate opportunity to know the motorcycle was positioned to the front of his truck.
The evidence
Robert James Pope
Sergeant Pope gave evidence that he finished work early on the afternoon of 7 December 2009. He was riding his privately owned near‑new Hyosung 250cc motorcycle. He said that he had only recently returned to riding motorbikes, but prior to the break had been riding them for over 28 years. He had also been a police training instructor for motorbikes and cars. He had never had an accident.
Sergeant Pope said that he is six foot four inches tall. He said that on this day, as always, he was riding his motorbike with its headlights and rear lights illuminated.
Sergeant Pope said that as he was riding along Great Northern Highway he slowed for a truck and trailer that was exiting from Midland Brick and turning left onto Great Northern Highway. He then proceeded past the truck towards the roundabout at Middle Swan Road. He said that as he reached the intersection there were no vehicles directly behind him.
Sergeant Pope said that he stopped his motorcycle at the give‑way line. He could see that there was a great deal of traffic entering the roundabout from Roe Highway and it was apparent that he was not going to be able to turn into the intersection immediately. Accordingly, he kicked the bike's gear into neutral and remained stationary with both feet on the ground. He estimated that he stayed in this position at the intersection for some 30 to 40 seconds. He then heard a truck coming up behind him. He was not sure if this was the same truck that he had passed coming out of Midland Brick.
Sergeant Pope said that he then felt a bump to the back of his motorcycle which pushed him forward between 1 m and 1.5 m. He tried to kick his bike back into gear but was then hit a second time. He then tried to jump off the bike but his leg became stuck in one of the foot pegs and he was knocked to the ground with one leg caught beneath the bike. He hit the ground face down and he and the bike were then pushed into the intersection as the truck moved forward. He said that the truck's left wheel drove onto the bike and he ended up behind that wheel.
Luke James Reddock
Mr Reddock could not be located to attend the trial and a part of his statement was read into evidence by consent. He stated that he was the front passenger in a car being driven by another witness, James Trapski. The car in which he was a passenger was travelling on Roe Highway in a westerly direction and stopped at the roundabout intersection. Whilst stationary, Mr Reddock saw a motorcyclist stopped in front of a truck on Great Northern Highway facing north. Both vehicles were stationary when he saw them. He said that the motorcyclist was behind the give‑way line and had both feet on the ground. He said that the truck was 5 m back from the intersection and 'pretty close' to the back of the motorcycle.
As the vehicle in which Mr Reddock was travelling entered the intersection and passed Great Northern Highway he noted that the truck commenced moving forward. The front left of the truck then hit the rear of the motorcycle which was still stationary. The impact caused the motorcycle to fall to its left and the motorcyclist fell to the ground and rolled under the truck.
James William Trapski
Mr Trapski was driving the vehicle in which Mr Reddock was a passenger. He drove in a westerly direction on Roe Highway towards the intersection of Great Northern Highway. As he was passing through the roundabout he noticed a truck on Great Northern Highway. He remembered seeing the truck and the motorcycle and was reasonably sure that they were both stationary. He said that the motorcycle was in front of the truck. He only had an opportunity to glance at the two vehicles. He did not see the collision but recalls that as he drove around the roundabout, Mr Reddock said: 'Hey, that truck just ran over that motorbike.'
Ross Roberts‑Spencer
Mr Roberts‑Spencer was the driver of a car travelling in a northerly direction along Great Northern Highway. He said that as he approached the relevant intersection, there was a truck about two or three vehicles in front of him. Traffic was banked up to about 0.5 km back from Midland Brick. He said that the traffic was stopping and starting and moving at about 10 km an hour.
Mr Roberts‑Spencer said he saw a motorcycle pass him on the right when he was stationary near the Midland Brick entrance. There was no confirmation that this was in fact the complainant's motorcycle. He said that after the motorcycle passed him, the line of traffic continued to be stationary. He said that it was possibly about half a minute that passed before he looked up and saw that the truck was over the give‑way line.
Sarah Jane Hombergen Crute
Ms Crute was driving a four‑wheel drive vehicle travelling north on Great Northern Highway towards the intersection. As she approached the intersection she noted that there was a truck two vehicles in front of her. She said that the traffic was busy and congested. She did not see a motorcycle. When the traffic started to move, she saw that the truck moved into the roundabout before stopping. She said that she did not see a motorcycle pass her either on her left or right before the incident. She said that when the truck was moving and prior to it coming to a stop, she saw a man pinned under the left front wheel who was pushed along the road for a couple of metres.
Brian Andrew Hugessen
Mr Hugessen was also the driver of a car travelling north on Great Northern Highway. He said he was the third or fourth car behind the truck. He saw the truck come to a complete stop at the intersection. He could not see whether any vehicle was in front of the truck. He saw the truck move forward into the intersection about 8 m to 10 m and noticed an object under the left corner of the truck which was pushed 3 m to 5 m forward before stopping.
Mr Hugessen did not see any motorcycle pass on his left or right side towards the intersection. He estimated that from the time the truck stopped and then moved forward it was approximately ten seconds.
Other witnesses, including attending police officers and vehicle investigators who examined the truck after the collision, also gave evidence. I have taken that evidence into account but it is unnecessary to summarise it here.
The appellant's evidence
The appellant stated that he had trained as a heavy haulage driver from the age of 21 and had been continuously employed in that capacity for some 22 years. He said he had been driving the vehicle involved in the collision for five years and was very familiar with its performance, characteristics and behaviour on the road when fully laden. He said that the vehicle was in good, serviceable and roadworthy condition. The vehicle was 17.5 m long in combination with a cab and trailer. He said he was not affected by drugs or alcohol on the day and did not need glasses for driving. He had started his shift at 4.30 am that day but denied he was tired.
The appellant said he was familiar with that area of the road. He said he had good vision approaching the roundabout and saw no‑one in front of him. He confirmed that the weather conditions on the day were good. He estimated that he was travelling at about 30 km per hour between the exit of Midland Brick and the give‑way line at the roundabout.
As he approached the intersection, the appellant put his left indicator on. He said he probably stopped about two feet from the give‑way line. He agreed that there were various blind spots to the front, left and right sides of the vehicle though he could not estimate the size of those blind spots. He said that before he pulled into the intersection he would have been looking to the right because that is where the traffic was coming from. He disagreed with the prosecution's proposition that the motorcycle could have been there but because he was looking to the right he did not see it. He said he would have seen the motorcycle as he was approaching the intersection if it had been stationary at the give‑way line as he approached. He said that he would have been able to see a motorcycle from 1 m to 1.5 m away.
The appellant said that there were no vehicles travelling between the truck and the intersection as he left Midland Brick to travel north on Great Northern Highway. He estimated that he waited about 30 seconds at the intersection. He said that the traffic then cleared and he was able to move ahead. He said that there needed to be a good clearing at the intersection for him to enter it with the truck.
The appellant said that a short distance into the roundabout he heard a noise but was unsure about it so he moved ahead ten more metres. He thought it was rubbish under the truck. He then stopped and got out of the truck and that was when he saw the motorcycle and rider on the ground.
The appellant maintained that he did not see the motorcycle at all after he left Midland Brick. He said that he did not see such a vehicle pass him either on his left or right. Nor did he see a motorcycle as he approached the intersection.
The defence case in essence was that the appellant had not seen Sergeant Pope on his motorcycle at any time prior to the incident. It was suggested that the motorcycle had come up on the left‑hand side of the truck and turned in front of it and stopped. It was submitted that the appellant, in these circumstances, either could not see the motorcycle because it was in his blind spots or did not have sufficient time to see the motorcycle whilst maintaining a proper lookout. The defence's contention was that Sergeant Pope had cut in front of the truck and parked at an angle in the short space between the front of the truck and the give‑way line.
The magistrate's decision
At the conclusion of the hearing the magistrate gave detailed oral reasons for concluding that the appellant was guilty. His Honour set out the relevant law and noted that the relevant question for him was to assess the quality of the appellant's driving.
His Honour noted that the defence had submitted that there was a reasonable alternative explanation for the collision other than that the appellant had failed to keep a proper lookout as he was approaching the intersection. His Honour then said:
One thing is for certain: Mr Pope was on his motorcycle, it was in front of the truck at the roundabout, and the truck, driven by Mr Brown, did drive into it and then essentially over it in the manner that we have heard. We heard a graphic description by Mr Pope. Mr Pope fortunately does not appear even to have suffered head injuries, and therefore his recollection - the terror must have been extraordinary, and the pain afterwards. But he was concise.
When it was suggested to him that he drove his motorcycle up the side or in some way did something the truck driver would not be able to see, he spontaneously retorted, 'Ridiculous.' In my view, that sets the stand-off position between the two sides. Mr Pope is adamant that he was in place, if I can put it that way, in pole position, at the line, and that the truck driven by Mr Brown drove up to him and then took off when he was still stationary, as he said, in neutral with his feet on the ground. Mr Brown denies that is so. So that needs to be analysed (ts 77).
His Honour then went on to consider whether there was any reason to doubt Sergeant Pope's evidence. His Honour accepted Sergeant Pope as an honest witness and also accepted his account that he was at the give‑way line first and that the truck approached him from behind. However, his Honour doubted that Sergeant Pope was accurate in stating that he was waiting at the give‑way line for some thirty to forty seconds before the truck drove up behind him. His Honour's reasons in that regard appear to have been based on his own experience that witnesses are unreliable when it comes to assessing lengths of time. His Honour said in this regard:
In any event, at the end of the day the fact that Mr Pope may have been wrong about the time causes me no concern at all. It is garnish on the plate, the time. It is not important to my reasoning and rationale. It does not cause me to have doubts about the major issues, the fact that he may have been mistaken as to the time. There are small things that are less important, particularly in the circumstances where he ended up in hospital.
I do of course have to consider overall whose reliability - I have no doubt at all Mr Pope is an honest witness. Any suggestion that he is dishonest or gilding the lily or trying to sort out a civil case - I am not saying it was directly suggested to him - but I reject. I have no problems with Mr Pope's evidence at all. But I do accept that it is subject to cross‑examination, and I am asked to analyse it in terms of reliability.
Things such as the time; I think it is highly unlikely he was sitting at the white line before the truck arrived, at the time he thought he was. It has been my experience, and every magistrate, anybody who has been involved in this already, people are notoriously bad at judging time (ts 77 ‑ 78).
His Honour then noted that Sergeant Pope's evidence was clear that he got to the give‑way line first and that he refuted any suggestion that he drove up the side of the truck as it was slowing or stopped. In regard to the time he was stopped, his Honour reverted to this issue and said:
I do not believe he was there a good 30 to 40 seconds. That is a long time. As I say, if we did the - and I am not going to do it. If we sat here for 40 seconds without saying anything that is a long time. It may well be that he is - bearing in mind - it depends on what - at 30, 40 seconds. My understanding is it was on response to a question, 'How long were you there till the truck came up' behind him but it may well have been a total - I do not know, but I am certain he was not there that long, and in any version of events, in any way I can translate it, he was there, stopped and stationary, bike out of gear into neutral, feet down, not moving anywhere, too much traffic, and that is clearly his evidence (ts 81).
His Honour noted that the defence case was that Sergeant Pope had driven up the left‑hand side of the truck such that the appellant had been unable to see him. His Honour said:
As I said, that is when he said - it was put to him, asked him if he drove up the left‑hand side and he said, 'That's ridiculous.' So, as I say, I know the question was objected to but the answer came out and really I think that sets the parameters of the two sides; sets the sides apart. The accused of course, as I have already mentioned, does not know that that is what happened but it is his deep suspicion because he just did not see the motorbike and he cannot work out any other way it could have occurred is my understanding of it, but Mr Pope said, 'That's ridiculous.' (ts 82)
His Honour noted that Mr Roberts‑Spencer had given evidence of a motorcycle passing his vehicle and that it was suggested that this may have been Sergeant Pope. His Honour noted that this had been put to Sergeant Pope and he had denied it. His Honour said that Sergeant Pope had been a good witness with a clear recollection of the events. He stated in this regard:
All right, he was a good witness. I accept his truthfulness and I will leave it at that now because his accuracy and reliability - if his evidence is right he was there, propped in position, and it would be pretty hard to infer anything other than the accused had the opportunity to see him there, and I will again come back to that, because I appreciate that is the grave issue here (ts 83).
His Honour then referred in some detail to the evidence of Mr Roberts‑Spencer, Ms Crute and Mr Hugessen. In particular, he noted that there was inconsistency between them in regards to whether a motorcycle had driven past them whilst they were stationary or moving slowly towards the intersection. He noted that two of the witnesses stated that they did not see a motorcycle pass them and that this was consistent with the evidence of Sergeant Pope. He said that in these circumstances, and accepting as he did the evidence of Sergeant Pope, he could not draw an inference that Sergeant Pope had driven past the truck on the left‑hand side whilst it was slowing or stationary at the intersection.
His Honour then summarised in detail the evidence of the appellant. In this regard, he noted that the appellant had conceded that the visibility from the cab of the truck was good and that if someone had been in front of him when he was approaching the intersection he would have been able to see them. He also admitted that if there had been a motorcycle directly in front of him he would have been able to see it from his position in the truck if the motorcycle had been there before his truck arrived at the intersection.
In conclusion, his Honour said:
I believed Mr Pope and I believed him implicitly and emphatically in his evidence. He may have been wrong in small detail, I think he was, but the big detail is that he got himself up to the intersection first and I have no doubt at all that that is what has happened.
He did not drive down the side of a truck, there is no evidence that would suggest that he drove down the side of the truck. It is a speculation. It is a reasonable thing to ask me to speculate on because I accept the accused did not see - I accept his honesty when saying he did not see the vehicle. It is obvious unless he is a murderer - and which he is obviously not, he is not going to just deliberately drive into a motorcyclist in front of him, he is simply trying to go home and go about his business as everybody else was on that road that day.
So there is no evidence that there was a motorcycle going down the left‑hand side. The only evidence that we have is - would suggest the contrary of anything or at least be neutral on it if I can refer to the evidence of the witnesses who indicated they saw no motorcycle. Pope's injuries did not affect his recollection and memory and I accept that he rode on the inside of the truck at one point.
I think he is wrong about the two trucks. I suspect - I am strongly of the opinion there was only one truck. Again, in my view, that is not something that causes me to have grave doubts about the rest of his evidence. I believe he was stationary for some time, probably a few seconds only, enough time to be seen.
...
So I find primary facts proven beyond reasonable doubt that the complainant drove up to the white line, stopped for an indeterminate number of seconds but enough to realise that he could not move. He stopped and could not move because the roundabout was too full of vehicles, and stopped, feet on the ground as Reddock describes it also, waiting for the intersection to clear.
The accused then came up behind him and stopped and I have no reason to disbelieve the accused that he did not see the motorcycle. I do not believe it is a case where he has assumed that the motorcycle has driven off as we all know happens from time to time when you assume someone has gone particularly if they are a smaller, more nippy vehicle and then driven off because it clearly was a complete shock to Mr Brown as well. He has not seen the vehicle (ts 95 ‑ 96).
His Honour said that the appellant had failed to keep a proper lookout as he approached the intersection and that had he done so he would have seen Sergeant Pope. He said that that failure constituted dangerous driving in the circumstances of this case.
The relevant law
Section 59(1)(b) of the RTA provides that:
(1)If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of, or grievous bodily harm to, another person and the driver was, at the time of the incident, driving the motor vehicle -
...
(b)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 a crime and is liable to the penalty in subsection (3).
In Re Her Honour Judge Schoombee; Ex parte Attorney General for Western Australia [2011] WASCA 129 Buss JA considered the authorities and made some general observations about the offence of dangerous driving causing grievous bodily harm. Although those comments were made in reference to s 59 as it was prior to amendments in 2008, they are relevant to the offence in s 59(1)(b). At [12] his Honour said:
Several observations may be made about the offence of dangerous driving causing grievous bodily harm as embodied at the material time in s 59(1) of the RTA. First, negligence is not an element of dangerous driving. That is, negligent driving is not necessarily dangerous driving. The offence is not established by the prosecution proving that the incident resulting in grievous bodily harm was caused by the accused failing to drive with due care and attention. See McPherson v Lucas [2008] WASCA 56; (2008) 49 MVR 429 [24] (McLure JA, Wheeler & Miller JJA agreeing); Kaighin v The Queen (1990) 1 WAR 390, 395 (Malcolm CJ, Walsh & Ipp JJ). Secondly, for driving to be 'dangerous' within s 59(1), it must in reality be actually or potentially dangerous to the public or another person. See Kaighin (395). Thirdly, a momentary lapse of attention may constitute dangerous driving. See Kaighin (395). Fourthly, the test as to whether driving is dangerous is objective. See Kaighin (395). Fifthly, it is not an element of the offence, and it is unnecessary for the prosecution to prove, that the accused deliberately, recklessly or intentionally drove dangerously or deliberately, recklessly or intentionally created a danger to the public or another person. See Turner v Hughes [2000] WASCA 276; (2000) 32 MVR 225 [18] - [21]. Sixthly, although intention is not an element of the offence, liability under s 59(1) is not absolute. It does not extend to involuntary acts. Also, the defence of mistake under s 24 of the Code may be invoked and, if the accused satisfies the evidential onus, the prosecution must negative the defence beyond reasonable doubt. See McPherson [21] - [23].
In McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44 Barwick CJ stressed the need to precisely identify the manner of driving which the prosecution alleges is dangerous to the public. His Honour referred to s 52A of the Crimes Act 1900 (NSW) which is similar to s 59(1)(b) of the RTA. At pages 49 ‑ 50 his Honour said:
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.
Essentially it is the quality of the driver's actual driving behaviour as distinct from any objective physical movement of the vehicle that is assessed in determining the manner of driving for the purposes of s 59(1)(b): R v Coventry [1938] HCA 31; (1938) 59 CLR 633, 638; McBride (50).
In McPherson v Lucas [2008] WASCA 56; (2008) 181 A Crim R 587 McLure JA said:
The State's position is that the objective physical movement of the car is a fact in issue in an offence under s 59A. That is wrong. The relevant fact in issue is the actual driving behaviour of the driver: R v Coventry (1938) 59 CLR 633; McBride. 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 as in McBride and this case. An allied contention of the State was that whether or not the appellant looked to her left to determine if there were oncoming cars on Broadway is irrelevant because the test of dangerous driving is objective. 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 had to what the driver knew or ought reasonably to have known [31].
In McPherson the appellant was charged with dangerous driving causing bodily harm contrary to s 59A of the RTA. That case involved a collision at an intersection that occurred as a result of the appellant failing to give right of way. At first instance, the magistrate had dismissed the charge on accepting the evidence of the appellant that she had looked carefully both ways before entering the intersection. The magistrate's decision was overturned on appeal by Hasluck J. The issue before the Court of Appeal was whether the appellant drove so inattentively when approaching and entering the intersection that such inattentive driving constituted a danger to the public. McLure JA (which whom Wheeler and Miller JJA agreed) said that as the magistrate had accepted the appellant's evidence as to her manner of driving, it was not open to the court to be satisfied beyond reasonable doubt that the appellant drove in a manner dangerous to the public [34]. Her Honour said that it may be impossible to answer the question as to why the appellant did not see the complainant's car and still have reasonable doubt as to whether the appellant was driving so inattentively as to be a danger to the public.
In Peacock v Jones [2010] WASC 358 Blaxell J allowed an appeal from a conviction for dangerous driving causing grievous bodily harm. In that case the appellant had turned his vehicle in front of a motorcycle which had then collided with his vehicle. His Honour said that on the facts of that case there were possible explanations as to why the appellant might not have seen the complainant on his motorcycle as he moved into the intersection even if he was acting with all reasonable care and attention. The circumstances were that at the time of the collision it was dusk and the motorcycle was approaching from around a bend in front of a four‑wheel drive. The four‑wheel drive had its headlights on and the motorcycle was black and the motorcyclist was wearing dark clothing. His Honour said that those circumstances offered possible explanations as to why the appellant in that case might not have seen the complainant on his motorcycle before moving out into the intersection.
The appellant's contentions
The appellant contends that having rejected Sergeant Pope's evidence in regard to the amount of time that he spent waiting at the give‑way line before the truck came up behind him it was not open to the magistrate to conclude that the appellant had an opportunity to know of the presence of the complainant's motor cycle prior to the collision. On the basis of the estimated travelling speed of the truck and the motorcycle and the distance between the point that the truck entered Great Northern Highway and the intersection, it was submitted that it was possible, if not likely, that they would have arrived at the intersection at approximately the same time. On this basis, the possibility that the appellant had no opportunity to see the motorcycle could not be excluded. Alternatively, if the motorcycle was capable of being seen by the appellant, it was for such a short time that it would not be possible to conclude that any failure to see it was as a result of failing to keep a proper lookout such as to constitute dangerous driving.
The difficulty with the appellant's argument is that it critically depends upon assessments of the driving speed of the motorcycle and the truck which may or may not be reliable. As opposed to these calculations there was evidence, which the magistrate accepted as being truthful, that Sergeant Pope arrived at the intersection first and was stationary when the truck approached behind him. The fact that the magistrate doubted Sergeant Pope's estimate of the length of time that he was waiting at the give‑way line does not detract from this essential factual finding. Whilst it is correct that the magistrate was unable to determine the length of time that the motorcycle would have been visible to the appellant as he approached the intersection, it is apparent that his Honour was satisfied that the appellant had such an opportunity and that to drive towards the intersection without keeping a proper lookout for other vehicles ahead of him was to drive in a manner that was dangerous to the public.
The defence case at trial was that the appellant had been driving with appropriate attention and would have seen the motorcycle if it had been stationary at the intersection as the truck approached. On this basis it was suggested that the reason why the appellant did not see the motorcycle was that it had passed the truck on the left‑hand side in circumstances where it could not reasonably be seen. This meant that the credibility of Sergeant Pope was of central importance. He denied that he had passed the truck in the way suggested and maintained that the truck came up behind him after he had stopped.
The magistrate was in a good position to assess the evidence of Sergeant Pope. Where the findings of a primary court depend to any substantial degree on the credibility of witnesses it must be borne in mind that that court had the opportunity to both see and hear the witnesses give their evidence. Findings may be disregarded by an appeal court if the primary court 'has failed to use or palpably misused' its advantage or has acted on evidence which is 'inconsistent with facts incontrovertibly established by the evidence' or which are 'glaringly improbable': Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479 (Brennan, Gaudron and McHugh JJ) and Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [66] (McHugh J).
Although it has been submitted that Sergeant Pope's evidence was not consistent with a calculation as to the movement of the vehicles based upon the appellant's evidence, that does not lead to a conclusion that Sergeant Pope's evidence was glaringly improbable or inconsistent with other incontrovertible evidence. In my view, it was clearly open to accept Sergeant Pope's evidence. Having done so, the appellant's own evidence left no real room for the appellant to have been driving with appropriate attention.
Unlike Peacock, there was no evidence independent of the primary witnesses before the magistrate which might reasonably explain why a driver keeping an appropriate lookout would not have seen the motorcycle. This was not a case where due to the time of day and other driving conditions a reasonably attentive driver might fail to see the motorcycle. Unlike McPherson, this was not a case where the magistrate had accepted that the driver had taken reasonable precautions. The fact that it may be impossible to determine exactly why the appellant did not see the complainant's motorcycle does not preclude a conclusion that he failed to drive in an appropriate manner. The magistrate did not find that the appellant had seen Sergeant Pope and driven deliberately over him or had seen him and then forgotten his presence, rather the conviction was based upon an acceptance of the appellant's evidence that he had not seen Sergeant Pope, but on an assessment that in all of the circumstances he could and should have seen him. That was a conclusion that was supported by the evidence.
The appellant's submissions suggest an alternative interpretation of the evidence. It is suggested that the magistrate's conclusions were contrary to the evidence or not supported by evidence. I am unable to accept those contentions. There was evidence, in particular from Sergeant Pope, as to the circumstances in which the collision occurred that support a conclusion that the appellant had driven in a manner that was dangerous to the public. It was open to the magistrate to accept that evidence, as he did.
It may well be that the opportunity to see the motorcycle was brief, albeit that the period of time cannot be quantified. However, it follows from the magistrate's findings that an appropriately attentive driver would have been looking towards the give‑way line as he approached the intersection. This may have been a momentary lapse of attention, but it was open to find that it involved driving in a manner that was dangerous, even though it was not deliberately or intentionally so.
For those reasons, the ground of appeal cannot succeed. The appeal is therefore dismissed.
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