"D" (A Child) v Hill
[1999] WASCA 38
•28 MAY 1999
"D" (A CHILD) -v- HILL [1999] WASCA 38
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 38 | |
| 28/05/1999 | |||
| Case No: | SJA:1012/1999 | 11 MAY 1999 | |
| Coram: | McKECHNIE J | 11/05/99 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | "D" (A CHILD) GRANT DOUGLAS HILL |
Catchwords: | Road traffic Reckless driving Whether sufficient evidence of wilfulness Turns on own facts |
Legislation: | Road Traffic Act 1974 |
Case References: | Atree v Randall (1993) 19 MVR 95 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Abalos v Australina Postal Commission (1990) 171 CLR 167 Brunskill v Sovereign Marine & General Insurance Co Pty Ltd (1985) 59 ALJR 842 Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 Davey v Ridge, unreported; SCt of WA; Library No 4824; 17 March 1983 Devries v Australian National Railways Commission (19930 177 CLR 472 Edmond v Taylor (1998) 27 MVR 158 Mann v Mann (1957) 97 CLR 433 R v Gwynne (A child), unreported; SCt of WA; Library No 990024; 1 February 1999 Tate v Arnold (1993) 19 MVR 649 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : "D" (A CHILD) -v- HILL [1999] WASCA 38 CORAM : McKECHNIE J HEARD : 11 MAY 1999 DELIVERED : 11 MAY 1999 PUBLISHED : 28 MAY 1999 FILE NO/S : SJA 1012 of 1999 BETWEEN : "D" (A CHILD)
- Appellant
AND
GRANT DOUGLAS HILL
Respondent
Catchwords:
Road traffic - Reckless driving - Whether sufficient evidence of wilfulness - Turns on own facts
Legislation:
Road Traffic Act 1974
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Ms S A Dechow
Respondent : Ms C V M Barton
Solicitors:
Appellant : Youth Legal Service
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Atree v Randall (1993) 19 MVR 95
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Case(s) also cited:
Abalos v Australina Postal Commission (1990) 171 CLR 167
Brunskill v Sovereign Marine & General Insurance Co Pty Ltd (1985) 59 ALJR 842
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192
Davey v Ridge, unreported; SCt of WA; Library No 4824; 17 March 1983
Devries v Australian National Railways Commission (19930 177 CLR 472
Edmond v Taylor (1998) 27 MVR 158
Mann v Mann (1957) 97 CLR 433
R v Gwynne (A child), unreported; SCt of WA; Library No 990024; 1 February 1999
Tate v Arnold (1993) 19 MVR 649
(Page 3)
1 McKECHNIE J : This is an appeal against a decision of a learned Children's Court Magistrate against a finding of reckless driving made against the appellant after trial on 19 January 1999. It is of interest to note that at the commencement of the hearing, counsel for the appellant indicated that the appellant had always been prepared to plead guilty to dangerous driving and that was particularised before me today as "going round the corner too fast".
2 The prosecution called three witnesses. Mr White was a young man working on a car on the street verge in Corella Street, Mullaloo on Sunday, 16 August 1997. He did not see the appellant's car come around the corner but observed it in Corella Street. Particularly, his evidence was - at 20:
"So it was - - like, I could see the front of the car but it had, you know, like the front - - well, I could see it was coming towards me obviously and I could see, like, the back end slightly out like that."
3 He was still under the car on which he was working and then he was asked:
"When you heard the screeching - - -?---I know I was on the ground because I had to get up, but I was, like, under the back bit, like, passed the back wheel sort of under the boot, sort of thing."
4 He looked up and then he said:
"I just, sort of - - I think it went like this because I was lying that way so I was like - - the car was like this and then it went like that, sort of thing. Yeah, pretty much."
5 It is clear from that that his observation was reasonably limited. He was asked why did he get out from under the car and he said:
"Because the car was coming up the street and it was, like, skidding and that. So - - yeah."
6 He then referred to the car as a utility.
7 Mr Wells was standing on the driveway of his house in Corella Street. He also did not see the car come around the corner. His attention was drawn to it by the noise. At p22 he said:
(Page 4)
- "I firstly heard a screeching type noise which was louder, softer, louder, softer, several times of which I then decided to peer around the end of my wall and look down the road, and at that stage I saw a white Falcon utility with its back facing towards my property and the bonnet of the vehicle was facing towards the ocean."
8 He thought that the vehicle had stalled. In describing further the noise he heard he said:
"It wasn't the screeching like the burn-out wheelie type screeching. It was more of a roar type. As I explained, it was almost as if a tyre was to roll off a rim. That type of gouging type noise, yeah."
9 Constable Brennan gave evidence that he conducted a video record of interview. He attended the scene where he observed skid marks and had photographs taken. The skid marks were 60 to 65 metres in length. The road surface was bitumen with a little bit of sand and blue metal on the intersection, although not in dangerous amounts. That was the case for the prosecution.
10 The defendant gave evidence that he lost traction or skidded. At p25 in examination-in-chief he said:
"Well, we were coming down Oceanside Prom and we turned into Corella and I, like, was probably going too fast and I changed down to second and I, like, turned too sharp and I've obviously slid out.
Okay. So when you say slid out, what happened when you slid out?---Well, I've lost traction on the car and it's gone to the right. The back end went to the right and I've tried to straighten it up and then it's gone to the left and lost traction over grass and picked up momentum, I suppose, and then it's gone back on to the road and then it ended up - - I ended up locking the brakes up and it's ended up on the grass."
11 His estimate of speed when he was travelling down Oceanside Promenade before turning into Corella was at 60 to 65 kilometres an hour. He had been driving at that stage for a few months. He indicated in cross-examination that his foot was on the accelerator and denied that he was giving it a heap of speed when on the video he said, "I was just driving to give it a bit of speed."
(Page 5)
12 He called another young man who had been a passenger in the car. His description was similar to that of the appellant. His description which appears at p33 was:
"We - - Craig, me and my brother, we went to Zedo's and then we went back to his girlfriend's house and they were all heading home - - or heading Oceanside and when we got to Corella - - it was just me and Craig in the car and they were back - - well, pretty far back, and we were turning into the corner and he was probably going - - probably a bit too fast because the tyres lost traction and the back swung out. He tried to straighten it up but it came back the other way and it, like, jumped - - the back tyre must have clipped the back kerb. So he tried to straighten it up again. He was heading for that guy underneath the car, but kind of like made sure it didn't hit him and it swung back and from him trying to miss the guy it lost control and we ended up on the other side of the road between two driveways on the lawn. We were facing towards the ocean.
Okay. Now, did any discussion take place in the car before he turned the corner?---No.
He didn't say, 'I'm going to do a burn-out'?---No. We were probably just talking about the surf. Like we always do."
13 As can be seen, the facts were of small compass and not complex. The only issue that was live was the wilfulness of the driving. The learned Magistrate gave his decision following the hearing. The Magistrate, after recounting the facts and noting some evasive or cute answers given by the appellant said, and this is the essence of his decision:
"Certainly from the evidence it was quite clear that he was quite used to the intersection and therefore he should have - - if he had have known about the gravel and sand and that it would be an obstacle or hazard, that he would have taken the appropriate care. He said that he slowed down, but the car slid out thereafter. The charge is that he drove dangerous, wilfully dangerously in Corella Street. One wonders how the defendant expects me to accept his explanation that he drove normally around the corner and took the corner normally, but the back slid out and then he lost control when he had 65 metres of skid marks. It is accepted by him as being that it was caused by his
(Page 6)
- vehicle. Those skid marks could mean one or two things. That he was braking and - - but in his evidence he said he did not brake until just before he stopped on the grass, or that he was driving in a manner which was not acceptable, which was dangerous in the circumstances and that he was laying down rubber all the way along Corella Street. Normal driving, no matter what the size of tyres, would not leave marks of such a nature. Therefore, the only inference and the irresistible inference is that as he went around the corner he sped. He deliberately accelerated his vehicle. Not, as he said, had his foot on the accelerator. He accelerated. He wilfully accelerated his vehicle and accordingly he drove in a manner that, in all the circumstances, was dangerous, and I find him guilty.
14 On 12 March 1999 I granted leave to appeal on the following grounds. The learned Magistrate erred in having found the evidence, supported the following finding:
"(a) That the only inference and irresistible inference was that as the defendant went around the corner he sped.
(b) That the defendant deliberately accelerated his vehicle.
(c) The 65 metre length of skid marks caused by the motor vehicle meant that the defendant did not lose control as he went around the corner and that the evidence established the vehicle was being driven wilfully and in a dangerous manner."
15 The law as to reckless driving is not difficult. It is sufficiently set out in the decision of Murray J in Atree v Randall(1993) 19 MVR 95particularly at 96 to 97. Although "wilful" has a special meaning under the Criminal Code and has to be equated with intention, under the Road Traffic Act the view is that of course while "intentional" may be encompassed by "wilful" the words also imply that the possible consequences may be adverted to but he is indifferent to them.
16 That was the issue before his Worship. In Vrisakis v Australian Securities Commission(1993) 9 WAR 395 at 447-448 Ipp J set out the standards to be followed by an appellate court in its need to review the evidence independently. I have therefore conducted a review of the evidence.
(Page 7)
17 In my judgment the learned Magistrate was entitled to reject completely the explanation given by the appellant and to be satisfied that the irresistible inference, having regard to the length of the skid marks and the observations of the witnesses, albeit limited to the driving within Corella Street, was that the appellant went around the corner accelerating.
18 This was a suburban street. The length of the skid marks is evocative of some speed or of fishtailing, but in the circumstances his Worship found that he had deliberately sped.
19 In my opinion it was open for the Magistrate to conclude that there was that element of deliberation and there was therefore a reckless indifference to the consequences of speeding in the circumstances, those circumstances including the tyres which were described in cross-examination by the passenger in the vehicle. Therefore, in my view it was open to the Magistrate to convict and I would dismiss this appeal.
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