DAVIES v Scott

[1999] WASCA 271

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE FULL COURT (WA)

CITATION:   DAVIES -v- SCOTT [1999] WASCA 271

CORAM:   PIDGEON J

WALLWORK J
MURRAY J

HEARD:   24 NOVEMBER 1999

DELIVERED          :   24 NOVEMBER 1999

FILE NO/S:   SJA 1156 of 99

BETWEEN:   RHYS LLOYD DAVIES

Applicant

AND

ALAN SHANE SCOTT
Respondent

Catchwords:

Appeal and new trial - Traffic Law - Reckless driving - Driver skidded vehicle deliberately - Conviction Petty Sessions - Single Judge refused leave to appeal - Whether any arguable case - Turns on own facts

Legislation:

Road Traffic Act s 60(1)

Result:

Appeal dismissed

Representation:

Counsel:

Applicant:     Mr P J Ward

Respondent:     No appearance

Solicitors:

Applicant:     Peter Ward

Respondent:     No appearance

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

A M Smith v R (1976) WAR 97

Butler v Gray (1944) 46 WALR 91

R v Coventry 59 CLR 633

Case(s) also cited:

Nil

1. PIDGEON J:   This is an appeal as of right under s 189 against the refusal of Miller J to grant leave to the appellant to appeal from the decision of his Worship R M M Glynn, Stipendiary Magistrate, in the Court of Petty Sessions at Northam.

2. His Worship convicted the appellant of an offence under the Traffic Act of reckless driving.  The facts were that on a road, which was a bitumen road, formerly part of a highway but it is now a bypass so it is a road out of town serving farms, the appellant drove his vehicle on that road in this manner:  He deliberately spun his wheels to do what was colloquially referred to and referred to by his Worship as a burnout and the vehicle, when it went into motion in this manner, the high acceleration caused its wheels to spin, and it then fishtailed.

3. His Worship analysed the evidence in some detail.  Smoke was seen coming from the wheels.  A woman nearby reported the matter to the police.  She said that the vehicle was doing a burnout, that there were originally three people at the motor car and that she saw people on the side of the road and that the car was travelling from her left to right along the road:

   "I could hear the noise like a roar from the engine and tyres."

4. She saw a lot of smoke coming from the tyres of the vehicle.  While this was happening one of the boys was attempting to photograph what was going on, and as the Magistrate found:

   "I am satisfied that at all times one of the boys was at the front of the vehicle and I accept what he says, that the sole purpose was to take photographs and that they were walking backwards close to the side of the road to enable photographs to be taken."

5. That was the evidence before his Worship who considered the matter at length.  Leave to appeal was sought, one of the grounds being that the test was more of a subjective test.  It was submitted that the appellant himself was capable of handling a vehicle under these conditions.  He had done it in competitions, received certificates for it.  It is now accepted that it is an objective test, and that clearly is the law.  There have been many cases on that point.  There was at one stage a view that it might be a subjective test.  In Butler v Gray (1944) 46 WALR 91, Sir John Dwyer referred to what was then the recent High Court case, R v Coventry 59 CLR 633, where it is held to be an objective test. Sir John Dwyer thought originally it was more of a subjective test. There have been many

authorities since, one of the later ones being A M Smith v R(1976) WAR 97. It is clearly an objective test.

1. His Honour looked at his Worship's reasons and refused leave and gave reasons for refusing leave. I am satisfied that Miller J was correct for the reasons he gave. I also add that there was an abundance of evidence to show that this vehicle was being driven on a road inherently dangerously. Having regard to that, I would say that I have looked at the matter afresh and I am satisfied that under s 187 of the Justices Act the grounds of appeal advanced do not disclose an arguable case.

2. WALLWORK J: Yes, I agree with the reasons of his Honour the presiding Judge and also that the decision of Miller J does not reveal any error. I am also independently of the view that the grounds of appeal advanced do not disclose an arguable case under s 187(1) of the Justices Act.

3. MURRAY J:   I agree.  I have nothing to add.