C, HW v Police - [2010] SASC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
C, HW v POLICE
[2010] SASC 101
Judgment of The Honourable Justice Gray
16 April 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY
Appeal against conviction - defendant found guilty at trial by Magistrate of driving without due care - death of motor cyclist circumstance of aggravation - whether prosecution had proved elements of offence beyond reasonable doubt.
Held: appeal dismissed - abundance of objective evidence from which inferences could be drawn to justify the Magistrate's conclusion that the prosecution had proved its case beyond reasonable doubt.
Road Traffic Act 1961 (SA) s 45, referred to.
R v Duncan (1953) 11 SASR 592; Dunsmore v Dawson (1981) 94 LSJS 1; Walton v Rowbottom [1986] SASC 9362; Stoeckel v Harpas (1971) 1 SASR 172; Ladlow v Hayes (1983) 8 A Crim R 377; Weissensteiner v The Queen (1993) 178 CLR 217; Azzopardi v The Queen (2001) 205 CLR 50, considered.

C, HW v POLICE
[2010] SASC 101
Magistrates Appeal
GRAY J.

This is an appeal against conviction.
The defendant and appellant, C, HW, was charged with the offence of driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA).[1] It was alleged that the offence was aggravated as the defendant’s want of due care caused the death of a motorcyclist.
[1] Section 45 of the Road Traffic Act 1961 (SA) relevantly provides:
(1)A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
(2)If a court convicts a person of an offence against this section that is an aggravated offence, the following provisions apply:
(a) the maximum penalty for the offence is 12 months imprisonment; and
(b)the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 6 months, as the court thinks fit; and
(c)the disqualification prescribed by paragraph (b) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.
(3)For the purposes of this section, an aggravated offence is—
(a) an offence that caused the death of, or serious harm to, a person; or
…
(4)If a person is charged with an aggravated offence against this section, the circumstances alleged to aggravate the offence must be stated in the instrument of charge.
…
The incident occurred on 28 May 2008 at or about 5.30 pm on Heaslip Road, Penfield. At the time the defendant was aged 17 years. As a consequence the matter was heard by a Magistrate sitting within the Youth Court jurisdiction.
The Trial
The charge was contested and the trial proceeded on 16 November 2009. The primary facts asserted by the prosecution were not challenged. It was not in dispute that the defendant was the driver of a motor vehicle that came into collision with a motorcycle travelling in the opposite direction, thereby causing the death of the rider. Further, it was not in dispute that the collision occurred entirely on the defendant’s incorrect side of the road.
The motorcycle ridden by the deceased was travelling north within a speed zone of 90 kilometres per hour on Heaslip Road at around dusk. It was not being ridden at an excessive speed. The motorcycle had its headlight and tail light on at the time. The motor vehicle driven by the defendant was travelling south on Heaslip Road. The defendant’s vehicle travelled to the wrong side of the road and collided head on with the motorcycle at a point near the centre of the north bound lane of Heaslip Road. There was no indication of any fault on the part of the deceased. Following the accident, the defendant was heard to say, on several occasions: “I’m sorry. I didn’t see him”.
At trial the prosecution tendered a number of documents, including statements that were received on the basis that they represented the sworn evidence that would have been given by the makers of each statement. Other documents included the police accident report, scale plans and photographs of the scene.
From these materials, it is apparent that at the time of the collision, Heaslip Road was sealed and in good condition. The weather was fine. There was no street lighting. Traffic at the time travelling south, was light.
Oral evidence was led by the prosecution from Sergeant Kuchenmeister, an investigating police officer who attended at the scene and made observations in relation to the collision:
QAfter your investigation at the scene what did you conclude was the cause for the accident.
AAfter a thorough investigation of the scene, after speaking to some witnesses that happened upon the scene after the conclusion, my experience, I concluded that the collision occurred on the north bound traffic line that is the correct traffic lane for the motorcycle and the incorrect traffic lane for the red car. I noted that there were no pre-impact type marks for either the red car or the motorcycle and all the gauge and scrape marks and subsequent type [sic] marks were post impact that is they were caused by the vehicle after the collision as it rotated towards the western side of the road.
QYou’re saying the cause of the accident is the red vehicle is being on the wrong side of the road.
AThat’s correct.
QIn your investigation did you find any reason for that car being on the incorrect side of the road.
ANo, I personally made enquiries with RAFE [sic] base Edinburgh relative to the potential for aircraft movement at that time, a person could be reasonably be distracted by an aircraft taking off so close to the roadway, there was no aircraft movement either landing, take-off or general movement at that time. Checks were conducted on [the defendant’s] mobile phone that he was carrying on the night, that revealed that there was no ingoing or outgoing calls at that time, so it was concluded that he wasn’t using the phone, so that wasn’t a cause or causation facture [sic] in the collision, and due to [the defendant] not answering questions and not having his version there was no story, so to say, to align with the physical evidence. Certainly there was no physical evidence at the scene to indicate why the vehicle crossed on the incorrect side of the road. The vehicle was examined by me briefly at the scene as I do at all vehicle collisions, just to have a look at the mechanism of force and where the impact took place. The vehicle subsequently examined by our vehicle examiner and that revealed no defects in the vehicle, the braking system or such like, that could have been a causation factor either, so as it stands the investigation was there was no reason given for the red vehicle to be on the incorrect side of the road and our investigation didn’t reveal anything either.
During cross-examination Sergeant Kuchenmeister gave the following evidence:
QEssentially your evidence is that we don’t know why he was on the wrong side of the road.
ACertainly and apart from that as I’ve outlined earlier, in my opinion there was no physical evidence, no defect in the vehicle which could have caused it to inadvertently or out of control, cross to the incorrect side of the road either.
QAre you able [to] state whether [the defendant] was not paying attention.
ANot conclusively no.
QYou can’t state either that he wasn’t driving without due care.
AFor a vehicle to cross on the incorrect side of the road, in my experience and my opinion, for no reason and no reason being given, then one would conclude that the vehicle’s being driven without all due attention and reasonably [sic] care.
QThere could have been a legitimate reason for the vehicle being on the wrong side of the road.
AThere could be, but none that I found in my investigation.
[Emphasis added]
Another investigator, Sergeant Hancock, gave evidence:
QCan you tell the court, as a result of your investigations, how the collision occurred.
AFrom the tyre marks, gauge marks, location of the vehicles, I determined that the Honda Civic at the time of the impact was on the incorrect side of the road for its direction.
QIs there any indication that the motorcycle was driving incorrectly at all.
ANo there wasn’t.
The defendant gave evidence at the trial. In evidence-in-chief he was asked about the collision:
Q     Do you remember the drive up until the time of the accident.
A     Yes.
Q     Can you tell us what happened while you were driving on Heaslip Road.
A     Nothing much really, just normal driving.
Q     Do you remember what happened at the accident.
AI don’t remember the actual accident, I do remember feeling a hit, hearing the noise and then ended up on the other side of the road.
…
QDo you remember anything about the accident.
ANo.
Q.Do you remember why you were on the wrong side of the road.
A.No.
QWere you on the wrong side of the road.
AI don’t believe so.
QDid you see the motor cycle.
ANo.
During cross-examination the defendant acknowledged that the collision occurred on his incorrect side of the road. He was unable to offer any explanation as to how he came to be driving his vehicle on the incorrect side of the road. No other evidence was presented by the defendant.
The Magistrate in ex tempore reasons observed:
There is no issue with the fact that the defendant was the driver of the Honda sedan involved in the collision on the date and time in question. Prosecution as part of its case tendered by consent a number of statements, site plans prepared by major crash investigators and numerous photographs of the scene. The evidence, which was not in any way challenged by the defendant, clearly establishes:
That Heaslip Road at the location of the crash scene comprises of a single bitumen carriageway, divided into two traffic lanes, separated by a centre broken white line.
That the defendants’ [sic] Honda sedan came into collision with the motorcycle, ridden by [the victim].
That the point of impact was on the northbound lane of Heaslip Road.
As a result of the collision [the victim] was killed.
The defendant was interviewed by police and elected not to answer any questions.
Having discussed the evidence and submissions of counsel the Magistrate concluded that the charge had been proved beyond reasonable doubt:
I have considered all of the evidence carefully and have had regard to the Judgment of Justice Von Doussa in No 2591 of 1986, cases of Walton v Robottom and the cases referred to in Paragraphs 2072-2075 of Bollen on Motor Vehicle Law. From the evidence I have reached the inescapable conclusion that the accident resulted from the defendants’[sic] failure to keep, “The necessary vigilant and perceptive lookout”.
The point of impact was definitely on the wrong side of the road for the defendant, yet he couldn’t remember driving on the wrong side of the road prior to the accident nor could he remember seeing the motorcycle travelling in the opposite direction. This clearly amounts to a lack of “vigilant and perceptive lookout”. I find the charge proved.
The Appeal
The offence of driving without due care is committed when there is a material departure from the high standard of care which is due by anybody who drives a motor vehicle.[2] The standard of care is one which must be related to all of the surrounding circumstances.[3] In Ladlow v Hayes[4] the following pertinent observations were made by Walters J:
…what the section prohibits is driving without observance of the standard of consideration for other road users that a reasonably prudent driver would observe in the circumstances;…
The oft quoted remarks of Wells J in Stoeckel v Harpas[5] are also apposite:
[C]ourts…are entitled, indeed bound, to require of motorists a measure of what is sometimes called defensive driving, or a look out that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger.
[2]    R v Duncan (1953) 11 SASR 592.
[3]    Dunsmore v Dawson (1981) 94 LSJS 1; Walton v Rowbottom [1986] SASC 9362.
[4]    Ladlow v Hayes (1983) 8 A Crim R 377 at 390.
[5]    Stoeckel v Harpas (1971) 1 SASR 172 at 172.
On the hearing of the appeal counsel for the defendant did no more than reiterate the submissions made at trial. It was contended that the absence of any objective evidence to support the allegation that the defendant’s driving had in some way departed from the required standard of care, led to the inescapable conclusion that the prosecution had failed to prove each of the elements of the offence beyond reasonable doubt. Counsel did not refer to any authority to support this proposition.
The driving of a motor vehicle on the incorrect side of the road when there may be traffic travelling in the other direction, so as to give rise to the risk of a collision, evidences a want of due care unless there is some explanation such as mechanical failure. In this case no possible explanation of any sort was advanced. There is no reasonable hypothesis consistent with the defendant’s innocence. The defendant gave evidence that he did not remember why his vehicle was on the wrong side of the road. No explanation was offered for this lack of memory.
The observations of the investigating officers established that the collision between the defendant’s motor vehicle and the motorcycle occurred entirely on the defendant’s incorrect side of the road. The evidence established that there was nothing at the scene to suggest that the motorcyclist was riding his motorcycle in other than an appropriate and careful manner. An examination of the motor vehicle did not reveal any mechanical reason for the vehicle to be on its incorrect side of the road at the time of the collision. There was an abundance of objective evidence from which inferences could be drawn to justify the Magistrate’s conclusion that the prosecution had proved its case beyond reasonable doubt.
The evidence given by the defendant was of particular relevance. He claimed that he had not seen the motorcycle prior to impact. As the Magistrate correctly found, this would support a finding of a failure to keep a vigilant and perceptive lookout. The evidence established that the motorcycle was being driven in a normal manner on its correct side of the road and that it was there to be seen. The defendant’s failure to keep a proper lookout together with the position of his vehicle on the wrong side of the road fully justified the Magistrate’s decision to find the charge proved.
One further issue arose on the hearing of the appeal. That issue involved the relevance of the High Court authority provided by Weissensteiner[6] and Azzorpardi,[7] to the circumstances of the present case. In an analogous sense, these authorities may be helpful only insofar as it may have been safer for the Magistrate to have drawn inferences adverse to the defendant from the facts proved by the prosecution, where the defendant failed to offer any explanation for why he was on the wrong side of the road, why he did not see the motorcycle or for his lack of memory. However, for the reasons given above, I need not come to a conclusion on this point, as the fact that the defendant in this case did give evidence that he did not see the motorcycle, itself supports the obvious inferences to be drawn from the facts proved by the prosecution.
[6] Weissensteiner v The Queen (1993) 178 CLR 217.
[7] Azzopardi v The Queen (2001) 205 CLR 50.
Conclusion
The appeal is dismissed.