De Pledge v The State of Western Australia
[2021] WASCA 1
•8 JANUARY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DE PLEDGE -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 1
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 23 OCTOBER 2020
DELIVERED : 8 JANUARY 2021
FILE NO/S: CACR 182 of 2019
BETWEEN: KIMBERLY THOMAS DE PLEDGE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 22 of 2020
BETWEEN: KIMBERLEY THOMAS DE PLEDGE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BURROWS DCJ
File Number : IND SHE 19 of 2018
Catchwords:
Criminal law - Appeal against conviction - Traffic offences - Dangerous driving occasioning death - Whether verdicts of guilty are unreasonable or cannot be supported having regard to the evidence - Whether the trial judge failed to adequately relate her directions to the facts of the case - Whether trial judge failed to adequately direct the jury as to the burden of proof - Whether a Liberato direction was required
Criminal law - Appeal against sentence - Traffic offences - Dangerous driving occasioning death - Whether total effective sentence imposed for two counts of dangerous driving occasioning death arising out of the same incident infringed the first limb of the totality principle
Legislation:
Road Traffic Act 1974 (WA), s 59, s 59B
Result:
Leave to appeal refused
Appeals dismissed
Category: B
Representation:
CACR 182 of 2019
Counsel:
| Appellant | : | M Shaw QC & K Handshin |
| Respondent | : | L M Fox |
Solicitors:
| Appellant | : | Salerno Law |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 22 of 2020
Counsel:
| Appellant | : | M Shaw QC & K Handshin |
| Respondent | : | L M Fox |
Solicitors:
| Appellant | : | Salerno Law |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Aston v The Queen [2019] VSCA 225; (2019) 90 MVR 62
De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100
Donovan v The State of Western Australia [2017] WASCA 170; (2017) 53 WAR 1
Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259
Gray v The State of Western Australia [2015] WASCA 108; (2015) 71 MVR 31
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
Kabambi v The State of Western Australia [2019] WASCA 44
Kershaw v The State of Western Australia [2014] WASCA 111; (2014) 66 MVR 551
King v The Queen [2012] HCA 24; (2012) 245 CLR 588
Liberato v The Queen (1985) 159 CLR 507
Lodge v Magorian [2012] WASCA 90; (2012) 42 WAR 270
McBride v The Queen (1966) 115 CLR 44
McPherson v Lucas [2008] WASCA 56; (2008) 181 A Crim R 587
MEN v The State of Western Australia [2020] WASCA 118
Moore v The State of Western Australia [2019] WASCA 35
Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Coventry (1938) 59 CLR 633
R v Coventry [1938] SASR 79
R v De Montero [2009] VSCA 255; (2009) 25 VR 694
R v Hendriksen [2007] SASC 304; (2007) 98 SASR 571
Rawiri v The Queen [2013] VSCA 130
Roffey v The State of Western Australia [2007] WASCA 246
Rubin v The State of Western Australia [2016] WASCA 2; (2016) 75 MVR 274
Smith v The Queen [1976] WAR 97
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1
Table of Contents
Summary
Elements of the offence
Dangerous driving
Causation
Defence of honest and reasonable mistake
Conviction ground 1: unreasonable verdicts
General principles
Uncontentious facts
Prosecution evidence
Constable Scott Stenson
Gareth Feint
Spencer Golden
David Caldwell
Daniel Bamaga
Stephen Mongoo
Jack Dawson
Police forensic evidence
Appellant's evidence
Character evidence
Reliance on appellant's evidence
The appellant's evidence was challenged
The jury could reasonably have rejected the appellant's evidence as to the distance at which he was following the caravan
The appellant's evidence was not wholly exculpatory
Other matters raised by the appellant
Basis on which it was open to the jury to convict the appellant
Conviction ground 2: trial judge's direction as to the elements
Trial judge's direction
The appellant's contentions
Directions as to the time of the alleged dangerous driving
Directions as to the manner in which the appellant's vehicle was driven
Perception of an ordinary person in the position of the appellant
Conviction ground 3: Liberato direction
Disposition of appeal against conviction
Appeal against sentence
Circumstances of the offending
Personal circumstances
Trial judge's approach
The totality principle
Sentencing for dangerous driving causing death
Disposition
Orders
CACR 22 of 2020: Appeal against conviction
CACR 182 of 2019: Appeal against sentence
JUDGMENT OF THE COURT:
Summary
On 23 September 2019, the appellant was convicted, after trial by jury, of two counts of dangerous driving causing the deaths of Mark and Lara Dawson. The charges arose out of a collision which occurred at about 3.00 pm on Friday 30 June 2017 on the Great Northern Highway near the Coonarie Creek bridge. The bridge is located about 165 km south of South Hedland and about 275 km north of Newman.
The deceased were driving their Toyota LandCruiser, towing a caravan, in a northerly direction towards the bridge. Mark Dawson was driving and Lara Dawson was in the front passenger seat. Their two teenage children were seated in the back of the LandCruiser. The LandCruiser was following a prime mover towing four trailers filled with ore, referred to as an 'ore quad', driven by Spencer Golden. Following the LandCruiser was a prime mover towing three trailers filled with cattle, driven by the appellant (appellant's cattle truck). Behind the appellant's cattle truck was a similar vehicle driven by the appellant's employee, Gareth Feint.
As the ore quad and LandCruiser approached the bridge, on which signposted bridgeworks were being conducted, the vehicles slowed. Mr Golden, who regularly drove the route, intended to slow down to about 20 km/h to pass over divots in the bitumen at both ends of the bridge.
About 100 m south of the bridge, when the ore quad and LandCruiser had slowed to about 35 km/h, the appellant's cattle truck collided with the rear of the caravan being towed by the LandCruiser. The collision pushed the LandCruiser into the southbound lane of the two lane highway. The LandCruiser collided with a grey Toyota Prado being driven in the opposite (southerly) direction by David Caldwell. The appellant's cattle truck subsequently collided with the LandCruiser itself. The appellant's cattle truck and the LandCruiser left the road on the eastern side of the highway. The LandCruiser rolled over at least once. The vehicles came to a rest near the beginning of the creek bed roughly 100 m from the initial point of impact between the appellant's cattle truck and the caravan. The deceased both died from catastrophic injuries, but their teenage children and the appellant survived the collision.
The State's case at trial was that the appellant drove his cattle truck in a manner that was, in all the circumstances, dangerous to the public or any person. It alleged that, as the appellant drove toward Coonarie Creek, he failed to maintain an adequate distance between his cattle truck and the deceased's LandCruiser and caravan, being a distance that would allow him to slow or stop his truck in response if the LandCruiser slowed or stopped. The jury by its verdicts found this allegation to be proven beyond reasonable doubt.
On 30 October 2019, the appellant was sentenced to 2 years 10 months' immediate imprisonment for count 1 (relating to the death of Mark Dawson). He was sentenced to 12 months' immediate imprisonment (reduced from 2 years 10 months for totality) for count 2 (relating to the death of Lara Dawson). The sentences were ordered to be served cumulatively, resulting in a total effective sentence of 3 years 10 months' immediate imprisonment. The appellant was made eligible for parole.
The appellant now appeals against his convictions and sentences.
The appellant appeals against his convictions on the following three grounds:
(1)The verdicts of the jury were unreasonable or cannot be supported having regard to the evidence.
(2)The trial judge failed to adequately relate her directions on the law of dangerous driving to the facts of the case.
(3)The trial judge failed to adequately direct the jury as to the burden of proof.
The appellant's appeal against sentence is on the sole ground that the sentence was 'manifestly excessive'. As explained in submissions, the appellant does not contend that the wrong type of sentence was imposed or challenge the length of the individual sentences of immediate imprisonment. Rather, the appellant contends that the length of his total effective sentence infringed the first limb of the totality principle.[1]
[1] Appeal ts 74 - 75.
The applications for leave to appeal on the above grounds have been referred to the hearing of the appeals.
For the following reasons, none of the grounds of appeal have any reasonable prospect of succeeding. Leave to appeal should be refused on all grounds and the appeals must be dismissed.
Elements of the offence
The appellant was charged with two offences against s 59(1)(b) of the Road Traffic Act 1974 (WA) (Act), which relevantly provides:
If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of … 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).
The maximum penalty provided for by s 59(3)(b)(i) of the Act in the present case (where there were no circumstances of aggravation and the appellant caused the death of another person) is a fine of any amount and imprisonment for 10 years.
In the present case, there was no dispute that the appellant was driving a vehicle involved in an incident occasioning the death of the deceased. The only live issue as to the elements of the offence was whether, at the time of the incident, the appellant was driving the vehicle in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person. The dangerous manner of driving alleged by the State was a failure to maintain an adequate distance between the appellant's cattle truck and the deceased's LandCruiser and caravan, being a distance that would allow him to slow or stop his cattle truck in response if the LandCruiser slowed or stopped.
Dangerous driving
In Donovan v The State of Western Australia,[2] this court set out the principles governing proof of whether a person drives a vehicle in a manner that is, having regard to all the circumstances of the case, dangerous to the public or to any person. That summary of the principles is repeated below for ease of reference.
[2] Donovan v The State of Western Australia [2017] WASCA 170; (2017) 53 WAR 1 [50] - [57].
The concept of driving in a manner dangerous to the public or to any person was explained by Barwick CJ in McBride v The Queen.[3] His Honour said that the section:
[I]mports a quality in the … 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.
[3] McBride v The Queen (1966) 115 CLR 44, 49 - 50, applied in McPherson v Lucas [2008] WASCA 56; (2008) 181 A Crim R 587 [25].
Barwick CJ contrasted the offence of dangerous driving with that of negligence. He said:[4]
The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby.
[4] McBride (50); see also McPherson [26].
In Jiminez v The Queen,[5] the High Court stated that:[6]
For the driving to be dangerous for the purposes of [the equivalent of s 59A], there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention. Although a course of conduct is involved it need not take place over any considerable period. Nor need the conduct manifest itself in the physical behaviour of the vehicle. If the driver is in a condition while driving which makes the mere fact of his driving a real danger to the public, including the occupants of the motor vehicle, then his driving in that condition constitutes driving in a manner dangerous to the public.
[5] Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572.
[6] Jiminez (579).
In McPherson,[7] McLure JA observed that earlier authorities suggesting fault was an independent element of the offence had been overtaken by the decision of the High Court in Jiminez. In Jiminez, the court said:[8]
Driving in a manner dangerous to the public is at once both the offence and, if it is relevant, the fault, but it will be a defence to establish an honest and reasonable mistake as to facts which if true would exculpate the driver.
[7] McPherson [22].
[8] Jiminez (583).
In McPherson, McLure JA explained that the use of the word 'establish' in that proposition was apt to mislead. The defendant has only an evidentiary burden.[9]
[9] McPherson [23].
Liability under s 59 is not absolute: it does not extend to involuntary acts and s 24 may apply to exclude criminal responsibility.[10]
[10] McPherson [21].
While the fact of the accident does not, of itself, demonstrate that the driving was dangerous, the incident in which the motor vehicle is involved can be relied on by the prosecution to provide evidence from which the quality of driving may be inferred.[11]
[11] McBride (50 - 51); Lodge v Magorian [2012] WASCA 90; (2012) 42 WAR 270 [55].
In McPherson, McLure JA explained that the focus of the inquiry under s 59A (or s 59) is the driving behaviour of the driver, and that the objective physical movement of the car is relevant only as a fact from which an inference about the driving behaviour of the driver may be able to be drawn. Her Honour explained the position as follows:
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.
Causation
Section 59B(1) and s 59B(2) of the Act contain inclusive definitions of when a motor vehicle is involved in an incident occasioning death of a person for the purposes of s 59 of the Act. It includes, in s 59B(1)(e):
an impact of the motor vehicle with another vehicle or an object or thing in, on or near which the person is at the time of impact.
It also includes, in s 59B(2)(a), death occasioned through the motor vehicle causing an impact between other vehicles.
Section 59B(6)(b) of the Act provides that it is a defence in a proceeding for an offence against s 59 for the accused to prove that the death occasioned by the incident was not in any way attributable to the manner (which expression includes speed) in which the motor vehicle was driven.
In the present case, there was no issue as to causation of the death of the deceased resulting from the collision between the appellant's cattle truck and the deceased's caravan and LandCruiser. However, we note the following observations about the provisions made by Buss JA (McLure P & Mazza JA agreeing) in The State of Western Australia v Olive:[12]
(1)Section 59(1)(b) focuses on the manner in which the allegedly offending driver was driving his or her motor vehicle at the time of the 'incident'; in particular, whether the vehicle was being driven in a manner (which expression includes speed) that was, in all the circumstances, dangerous to the public or any person.
(2)In the context of determining whether the vehicle driven by the allegedly offending driver was involved in an 'incident' occasioning the death of a person, s 59B(1) and s 59B(2) focus on the movement or behaviour of that driver's vehicle rather than on what the driver has done or not done.
(3)What the allegedly offending driver has done or not done is, however, the focus of the defence under s 59B(6) in that the defence requires the driver to prove that the death occasioned by the incident was not in any way attributable to the manner in which his or her vehicle was driven. Accordingly, there is a different focus between what the prosecution must prove, and what the defence may prove, in relation to causation.
Defence of honest and reasonable mistake
[12] The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [27].
The trial judge left the present case to the jury on the basis that the appellant's evidence raised a defence under s 24 of the Criminal Code that he honestly and reasonably but mistakenly believed that there was enough room between his cattle truck and the caravan to stop, if required, without a collision occurring. The trial judge directed the jury that the State could discharge its onus of proving that the appellant did not honestly and reasonably hold that belief by proving either:[13]
(1)the appellant did not honestly believe that there was sufficient time to stop; or
(2)if the appellant did honestly believe that there was sufficient time to stop, it was not reasonable for him to hold that belief.
[13] Trial ts 334 - 335.
This appeal can be resolved on the assumption that the trial judge was correct to identify a belief that there was sufficient time to stop as a belief as to 'any state of things' for the purposes of s 24 of the Criminal Code. On that basis, the critical issues for the jury's determination were whether they were satisfied, beyond reasonable doubt, of the following matters:
(1)At the time of the incident, the appellant was driving his cattle truck in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person, by failing to maintain an adequate distance between the truck and the deceased's LandCruiser and caravan (being a distance that would allow him to slow or stop his cattle truck in response if the LandCruiser slowed or stopped).
(2)The appellant did not honestly believe that there was sufficient time to stop.
(3)Alternatively to (2), (if the appellant did honestly believe that there was sufficient time to stop) it was not reasonable for the appellant to hold that belief.
To find the appellant guilty of the charged offences, the jury had to be satisfied beyond reasonable doubt of (1) and either (2) or (3).
Conviction ground 1: unreasonable verdicts
General principles
This court recently summarised the general principles governing the determination of appeals alleging that a jury's verdict is unreasonable or cannot be supported in MEN v The State of Western Australia.[14] It is unnecessary to repeat that summary.
[14] MEN v The State of Western Australia [2020] WASCA 118 [403] - [410], [705].
As was noted in that summary, the High Court recently described the functional demarcation between the province of the jury and the province of the appellate court in Pell v The Queen.[15] The court emphasised that the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representatives of the community.[16] By contrast:[17]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (citation omitted)
[15] Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394.
[16] Pell [37] - [38].
[17] Pell [39].
The demarcation of the role between this court and the jury also has significance for this court's assessment of the defence witnesses. In Pell, the High Court assessed the contradictions between the evidence of the complainant in that case and a number of Crown witnesses whose evidence was not challenged by the Crown. By contrast, in the present case the prosecution did attack the appellant's evidence on credibility grounds (albeit that it attacked the reliability rather than the honesty of his evidence). This court's assessment of the evidence must allow for the possibility that the jury might have considered that the manner in which the appellant gave his evidence impacted adversely on the jury's assessment of its reliability.
Uncontentious facts
It is convenient to begin the analysis of the evidence led at trial by noting some facts established by the evidence that were not contentious at trial or on appeal.
There was no issue that the incident occurred in the manner summarised at [2] - [4] above.
The road leading up to the bridge from the south was depicted in dash-cam footage from the cabin of Mr Golden's ore quad.[18] In that location, the Great Northern Highway is a single carriageway dual direction highway, with northbound and southbound lanes separated by painted white lines. There is a long straight stretch of road leading into a sweeping right hand bend followed by a straight stretch of about 1 km before the beginning of the bridge. The weather was clear, the land relatively flat and the vegetation relatively sparse, so visibility was very good at the time of the incident.
[18] Exhibit 11.
The collision took place in an area of road works on the highway. The general speed limit of 110 km/h was reduced by road signs to 80km/h and then 60 km/h in the lead up to the bridge. The speed signs on the right hand side of the appellant's direction of travel were standing, but the speed signs on the left hand side were lying face down on the ground.[19] There were also two 'rough surface' signs leading up to the bridge. While there were no active roadworks at the time of the incident, excavations to the southern side of the bridge involving the removal of a layer of asphalt had created a 'divot' in the road surface. The distances between the divot, signs and the point of impact between the appellant's cattle truck and the caravan (determined by gouges in the road surface) were as follows:[20]
[19] Trial ts 188.
[20] Trial ts 179 - 181.
Location Distance from divot (m) Distance from previous marker (m) Distance from point of impact (m) 80 km/h sign 835 0 732 60 km/h sign 555 280 452 1st rough surface sign 257 298 154 2nd rough surface sign 116 141 13 Point of impact 103 13 0
Mr Golden's ore quad was travelling at about 85 km/h along the highway prior to the roadworks signs. The dash-cam footage from the cabin (which faces forward and so does not show the collision) indicates that the ore quad slowed to about 25 km/h at the point it reached the divot at the southern end of the bridge. At the time of the collision between the appellant's cattle truck and the caravan (determined by the time Mr Caldwell's grey Prado passes the ore quad cabin) the ore quad is travelling at about 35 km/h.
Data downloaded from the LandCruiser recorded that, in the 3 seconds prior to the collision, the LandCruiser evenly reduced its speed from about 45 km/h to about 35 km/h at the point of impact.[21]
[21] Exhibit 15.
The appellant's cattle truck comprised a prime mover and three trailers, each holding about 60 cattle. The cattle truck was 46.5 m long, and weighed in excess of 100 tonnes. The appellant was driving alone, but was followed by a similarly stocked truck driven by an employee at the station part-owned by the appellant, Mr Feint. The appellant's cattle truck had no mechanical defects which would significantly reduce its braking capacity.
Mr Golden's ore quad comprised a prime mover and four trailers, each filled with ore. The ore quad was 60 m long, and weighed about 192 tonnes.
Dash-cam footage from Mr Caldwell's Prado showed the LandCruiser and caravan following behind the ore quad, and the caravan being struck by the appellant's cattle truck. The LandCruiser and caravan 'jack-knife', and the LandCruiser is pushed into the path of Mr Caldwell's Prado. The dash-cam video does not show the distance between the front of the appellant's cattle truck and the rear of the caravan at any significant time prior to the collision.[22]
Prosecution evidence
[22] Exhibit 4.
The prosecution adduced evidence from the following witnesses.
Constable Scott Stenson
Constable Scott Stenson was the first police officer to arrive on the scene after the collision, and gave photographic and oral evidence as to his observations. The dash-cam video from Mr Caldwell's Prado was tendered through Constable Stenson.[23]
Gareth Feint
[23] Trial ts 52 - 57.
Mr Feint gave evidence that he was following about 200 - 250 m behind the appellant's vehicle. They had been travelling at about 90 km/h, and slowed to about 80 km/h by the time they arrived at the 80 km/h sign approaching the bridge. They passed the 60 km/h sign doing about 60 km/h. Mr Feint was expecting a 40 km/h sign and so was braking, and maintaining his distance behind the appellant's cattle truck. He observed debris falling off the front of the appellant's truck and the truck concertina move onto the right hand side of the road. Mr Feint brought his cattle truck to a stop.[24]
[24] Trial ts 69 - 74, 82 - 83.
Mr Feint gave evidence of seeing a LandCruiser towing a caravan overtaking the cattle trucks about 30 minutes before the incident.[25] He also gave some evidence about radio discussions between himself and the appellant regarding overtaking an ore truck they could see in the distance, but did not catch up to.[26]
Spencer Golden
[25] Trial ts 72, 74, 79.
[26] Trial ts 74, 80.
Mr Golden gave evidence that he had been driving across the bridge twice a day, six days a week, and that road works had being going on for about a month. The divot had been present on the bridge for about 4 days.[27] Mr Golden intended to cross the divot at about 20 km/h because his first experience of crossing at about 40 km/h 'wasn't too good'.[28]
[27] Trial ts 86 - 88.
[28] Trial ts 93.
After slowing down to about 20 km/h for the divot, Mr Golden felt a bump from behind and saw debris flying in the air in his rear view mirrors. He saw the appellant's cattle truck cross the road and end up on the embankment. He brought the ore quad to a halt on the bridge.[29]
[29] Trial ts 90 - 91.
When Mr Golden spoke to the appellant after the incident, the appellant said, 'What could I have done?'.[30]
David Caldwell
[30] Trial ts 91.
Mr Caldwell described driving his Prado over the bridge in a southerly direction, and speeding up after passing the southern divot on the bridge. His partner made a noise and he looked up to see the caravan disintegrating and the LandCruiser being shunted to his side of the road. The LandCruiser collided with the front right hand side of Mr Caldwell's Prado.[31]
Daniel Bamaga
[31] Trial ts 94- 96.
Daniel Bamaga was driving a white Prado in a southerly direction ahead of Mr Caldwell's grey Prado. The dash-cam footage from the ore quad shows Mr Bamaga's white Prado to be only a relatively short distance (less than 100 m) in front of Mr Caldwell's grey Prado.
Mr Bamaga's evidence was that he observed the ore quad and LandCruiser towing a caravan, travelling 'in unison' onto the bridge at a fairly slow constant speed. He said that there was a 'fair gap' before he saw the appellant's cattle truck, which was 200 - 400 m south of the bridge when he saw it. Mr Bamaga thought the appellant's cattle truck was travelling 'quick' in what Mr Bamaga understood to be a 40 km/h restricted speed zone. Mr Feint's cattle truck was about a kilometre further south. When the appellant's cattle truck had gone about 200 m past Mr Bamaga's vehicle, Mr Bamaga looked in his rear view mirror and saw its brake lights on.[32]
[32] Trial ts 99 - 101.
In cross-examination, Mr Bamaga was asked again about the distance between the appellant's cattle truck and the LandCruiser with the caravan. He responded that it 'might have been' about 400 - 600 m and said that he was 'not entirely sure'. He said that he had not appreciated that there had been a collision until police contacted him a number of weeks later. Mr Bamaga agreed that, in his police statement taken on 18 July 2017, he had not mentioned seeing the brake lights on the appellant's cattle truck.[33]
Stephen Mongoo
[33] Trial ts 102 - 105.
Stephen Mongoo was driving a ute behind Mr Feint's cattle truck in a northerly direction along Great Northern Highway at the time of the incident. He said that there was about 200 m between Mr Feint's cattle truck and the appellant's cattle truck, and he was following about 30 m behind Mr Feint's cattle truck. Their speed dropped to just below 80 km/h at the 80 km/h speed sign. He pulled out slightly into the southbound lane and saw oncoming vehicles, so decided not to overtake. He saw the appellant's cattle truck move across the southbound lane and off the road.[34]
[34] Trial ts 108, 111 - 112.
After the collision, Mr Mongoo described the following conversation with the appellant (which was not challenged in cross-examination, except to the extent of suggesting that the appellant had also sworn):[35]
Mr MongooWhat the fuck happened?
AppellantThey just stopped in front of me.
Mr MongooWhat do you mean they fucking stopped in front of you?
AppellantThey just stopped in front of me, there was nothing I could do.
Jack Dawson
[35] Trial ts 114.
A statement of Jack Dawson, the deceased's teenage son, was read by consent. He described the LandCruiser overtaking the appellant's cattle truck about 4 - 5 minutes before the collision. Right before the collision, the LandCruiser was slowing down. He was watching a video on his iPad, and so did not know why they were slowing down. He described the LandCruiser rolling over a number of times after it was hit from behind, but did not know how many times.[36]
Police forensic evidence
[36] Trial ts 203.
Senior Constable Darren Harston, a police vehicle examiner, gave evidence as to the specifications and condition of the appellant's cattle truck. For present purposes it is sufficient to note that he found no mechanical defects which may have contributed to the collision.
Senior Constable Peter Price, a crash reconstruction officer with the Major Crash Investigation Unit, gave evidence about the state of the road at the scene of the collision, and the downloading and interpretation of data from the event data recorder on the LandCruiser. His evidence generally went to establish the uncontentious facts noted above.
Appellant's evidence
The appellant elected to give evidence at trial.
The appellant gave evidence that he had been driving trucks for about 20 years. He was 49 years old at the date of trial and had got his truck driver's licence at age 18. He had never been involved in an accident prior to 30 June 2017.[37] He had an interest in two stations, and was delivering cattle from Hooley Station near Wittenoom to cattle yards in Broome.[38]
[37] Trial ts 211 - 212.
[38] Trial ts 213 - 216.
The appellant described the journey to the point where he reached the bridge, including seeing the ore quad in the distance and being passed by the LandCruiser towing a caravan which disappeared into the distance.[39] The appellant then gave the following account of the collision.
[39] Trial ts 225 - 228.
The last time the appellant had driven on that road was months previously, when there was no divot on the bridge.[40] He observed the caravan about 400 - 500 m ahead of him as he came around the bend in the road.[41] The caravan did not have its brake lights on at that stage.[42] The appellant put his engine brake on, took his foot off the accelerator and shifted down half a gear.[43] He saw a sign (which he later saw was the 80 km/h sign) laying on the ground on the left hand side of the road.[44] He did not see any signs on the right hand side of the road,[45] and did not see any other signs on the ground.[46] The caravan was coming 'closer, but it wasn't anything astounding'.[47] At about the point of the 80 km/h sign, when the caravan was about 300 - 400 m in front of him, the appellant gradually and gently put the trailer brakes on by pulling on a lever in the cabin.[48] He said that he was not concerned about the distance at this stage.[49]
[40] Trial ts 228.
[41] Trial ts 229 - 232.
[42] Trial ts 232.
[43] Trial ts 232 - 234.
[44] Trial ts 234.
[45] Trial ts 237.
[46] Trial ts 238.
[47] Trial ts 233.
[48] Trial ts 233, 237.
[49] Trial ts 237.
The appellant's evidence was that, at this stage, he was travelling at 70 - 80 km/h.[50] He pulled on the trailer brake 'a bit more' to 'keep a decent distance' from the caravan, which was still about 400 m in front.[51] At somewhere around the point of the 60 km/h sign (which he had not seen at the time, but located having returned to the scene) the appellant saw the caravan brake lights come on, which he was not expecting.[52]
[50] Trial ts 238.
[51] Trial ts 238 - 239.
[52] Trial ts 239 - 240.
The following exchange occurred between the appellant's trial counsel, Mr Vandongen SC, and the appellant in his evidence-in-chief:[53]
So when you saw the caravan brake lights come on what went through your mind?---Potentially crap myself and just pulled everything on. I put my foot brake on, the trailer brakes.
Did you understand why the caravan's brake lights came on?---No. No.
What kind of thoughts went through your mind when you saw the caravan brake lights come on?---Was, 'Stuff me.' Like, yes, 'What's going on here?' Yes.
Were you confused about what happened?---Definitely confused. Yes.
Why do you say definitely confused?---Well, just because it - I - it seemed to be we were all rolling through and everything was fine.
[53] Trial ts 240.
The appellant gave evidence that he applied the pedal brake and trailer brakes as hard as he could, with the engine brake still on, but collided with the caravan.[54] He said he was 250 - 300 m away from the caravan when he put all of his brakes on.[55]
[54] Trial ts 241 - 242.
[55] Trial ts 242.
After confirming that he had never been in a traffic accident in a truck and had no criminal convictions, the appellant gave the following evidence-in-chief in response to Mr Vandongen SC's questions:[56]
We've heard some evidence about how fast the caravan may have been driving in the last few seconds before the collision. Driving down that stretch of the road from the bend, did you have any expectation that the traffic in front of you would be travelling at such a low speed?---No. No, I didn't.
And when the caravan - you saw the caravan brakes come on, did you say anything to yourself out loud in the cabin?---I might have said a French word, yes.
What was the French word?---Fuck me. Yes.
[56] Trial ts 244.
In cross-examination, the appellant was asked how fast he was travelling at the point where the 60 km/h sign was located and he saw the caravan's brake lights come on. He initially said that he expected that he had gotten below 60 km/h by that stage, but was only guessing.[57] Later in cross-examination, the appellant said that he would not have been travelling under 70 km/h at the 60 km/h sign, and would have been travelling at roughly 70 - 80 km/h at that point.[58]
Character evidence
[57] Trial ts 246.
[58] Trial ts 249.
The appellant also adduced evidence from three persons, Glenn Dellar, Stephen Warren and Samuel Oakley, who gave unchallenged evidence of the appellant's reputation as an honest and hardworking member of the community.[59]
Reliance on appellant's evidence
[59] Trial ts 259 - 262.
Many of the submissions advanced by the appellant on appeal proceed from the premise that the appellant's evidence at trial was unchallenged, must have been accepted by the jury and was wholly exculpatory. We do not accept any of those three premises.
The appellant's evidence was challenged
The appellant's evidence as to the distance between his cattle truck and the caravan was challenged in cross-examination. It was put to the appellant that the reason he was unable to stop in time was that he was a lot closer to the caravan than he described in his evidence, and much closer than 200 - 300 m from the caravan.[60]
The jury could reasonably have rejected the appellant's evidence as to the distance at which he was following the caravan
[60] Trial ts 254 - 256.
If the appellant's account were accepted, he applied all his available brakes as hard as he could at about the point where the 60 km/h sign was located. At that time the appellant's cattle truck was travelling at roughly 70 - 80 km/h. At that time the appellant said he was 250 - 300 m behind the caravan, which he said still appeared to be travelling quite fast.[61] The objective evidence indicated that the 60 km/h sign was about 450 m from the point of impact. The fact and nature of the impact indicated that the appellant's cattle truck must have been travelling significantly faster than 35 km/h at the point of impact.
[61] Trial ts 257 - 258.
There was no expert evidence led at trial as to the distance which the appellant's cattle truck required to slow from a speed of 70 - 80 km/h to a speed of 35 km/h. However, the jury could draw from their own collective experience as road users in assessing the reliability of the appellant's account. The jury might reasonably consider that, if the appellant had engaged maximum braking at a point when he was travelling at roughly 70 - 80 km/h, the appellant's cattle truck would not have been travelling significantly faster than 35 km/h about 450 m, or even 250 m, further down the road. Evidence as to the stopping distances of the ore quad and Mr Feint's cattle truck would tend to support that common experience. The jury could well have been satisfied that a licensed vehicle without relevant mechanical defect would be capable of slowing between 35 - 45 km/h over 450 m. On that basis, the jury could have rejected the appellant's evidence as to the distance between his cattle truck and the caravan as unreliable.
The jury might also have noted that the appellant's evidence made no mention at all of Mr Golden's ore quad. The fact that the appellant did not notice the slowing ore quad, which must have been very readily apparent to him riding high in the cabin of a prime mover on a clear day, can also be taken to suggest that his evidence was unreliable.
The appellant's evidence was not wholly exculpatory
We do not accept the appellant's submission that his evidence was wholly exculpatory. There were at least two aspects of the appellant's evidence which could reasonably have been regarded by the jury as supporting the prosecution case.
First, as was noted in R v Baden-Clay,[62] the evidence of an accused in a criminal trial may narrow the range of rational and reasonable inferences to be drawn from the evidence considered as a whole. In the present case the appellant gave evidence that he was travelling at less than 80 km/h, was paying attention to the caravan and saw when the brake lights of the caravan came on. That aspect of the appellant's evidence could have been accepted by the jury as excluding a cause of the collision which was not part of the particularised charge, such as the appellant not initially noticing when the caravan lights came on. Those aspects of the appellant's evidence were capable of excluding hypotheses other than the inference that the collision occurred because the appellant was following dangerously close to the caravan.
[62] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [47] - [52].
Secondly, the appellant's evidence as to his reaction to seeing the brake lights of the caravan come on, quoted at [62] and [64] above, could reasonably be taken to demonstrate his subjective appreciation of the inadequacy of the distance between the vehicles. That is, the appellant's reaction can be seen to reflect his immediate subjective appreciation that the distance he was following the caravan was entirely insufficient for him to avoid a collision with the slowing vehicle in front. This aspect of the appellant's evidence could reasonably be regarded as supporting an inference that he was travelling so close to the caravan as to leave no opportunity to slow or stop if the LandCruiser slowed or stopped. It could also provide a basis for the jury to be satisfied, beyond reasonable doubt, that the appellant did not honestly believe that he was travelling at a safe distance behind the caravan.
Other matters raised by the appellant
At trial and on appeal, the appellant's counsel raised a number of issues which appear to us to be, and could reasonably have been taken by the jury to be, false issues.
The appellant's submissions focus on the fact that, unlike Mr Golden and Mr Caldwell, the appellant did not know that there was a divot in the bitumen at the bridge. The submissions also focus on the fact that the speed reduction signs, reducing the speed limit only to 60 km/h, did not reflect the low speed at which a heavy vehicle would be likely to cross the bridge. However, the appellant's evidence was that he did not see the speed signs, so the fact that they did not indicate a lower speed limit is irrelevant to him. Further, while the appellant did not know of the divot in the bridge, he should reasonably have anticipated that the vehicle in front of him might slow down below the posted speed limit. That is particularly so in a signposted roadworks area.
The appellant submits that 'a reasonable road user in the position of the appellant, unfamiliar with the nature and severity of the road works ahead, could not have predicted or anticipated that vehicles in front of him or her were going to slow down, in a reasonably short space, to around half the posted speed limit'.[63] However, there are a variety of reasons why a vehicle travelling along a road may need to slow below the speed limit or stop. This may include roadworks, broken down vehicles, animals crossing the road or obstructions on the road. A jury may reasonably take the view that following at a distance which allows a collision to be avoided only if the vehicle ahead never travels substantially below the posted speed limit is dangerous.
[63] Appellant's Submissions, par 44.
Further, the present case did not involve an emergency stopping situation. That aspect of the submission cannot be accepted. Neither the ore quad nor the LandCruiser stopped up to the point of impact. Both were travelling at about 35 km/h in an area where the posted speed limit was 60 km/h. The video of the dash-cam in the cabin of the ore quad shows it to have been slowing gradually. Although the data from the event data recorder of the LandCruiser only extends a few seconds prior to the impact, that data shows that the LandCruiser was not braking heavily just prior to the impact. The obvious inference, which the jury could well have regarded as the only reasonable inference, was that the LandCruiser was slowing down in response to Mr Golden's ore quad slowing down. The jury could reasonably be satisfied that this was a case of Mr Golden's and the deceased's vehicles gradually slowing down in approaching road works, and was not an emergency stopping situation.
Nor is there any basis in the evidence for the appellant's submission that the deceased's LandCruiser created an emergency situation.[64] The only evidence was that the LandCruiser was slowing behind Mr Golden's gradually slowing ore quad. It is specious to suggest that the driver of the LandCruiser was somehow at fault, or acted in a manner that might reasonably be unanticipated, in braking when the vehicle in front of it was slowing down for roadworks.
[64] Appeal ts 20 - 21, 27.
The appellant refers to evidence of his good character, but that uncontested evidence would not significantly assist the jury in its task. The nature of the offence alleged against the appellant was not such as to be significantly less likely to have been committed by a person of prior good character. The offence by its nature need not involve deliberate intentional wrong-doing, and none was alleged in this case. That point was made by the prosecutor in opening:[65]
I imagine that when you think about crimes, you think of things like drug dealing or armed robbery, or burglary, and we all know that those sorts of things are bad, and when we think about the sorts of people who do those kinds of things, we probably imagine bad people, people who you wouldn't want moving into your street, the people who would deliberately sell drugs or hold up a petrol station or break into someone's house. But not all crimes are like that, and this crime is certainly not like that. This crime is about driving behaviour, and it's about whether [the appellant's] driving behaviour was, in all the circumstances, dangerous to the public or any person.
And a critical thing to understand is that good people trying their best at the time can drive dangerously.
Although the prosecutor invited the conclusion, by reference to the objective uncontested evidence, that the appellant's account of the distance he was travelling behind the caravan was unreliable, it was not suggested that the appellant was deliberately lying in his evidence.
[65] Trial ts 35.
Mr Bamaga's evidence also stood as an impediment to the prosecution case, as he gave evidence that there was a 'fair gap' between the appellant's cattle truck and the caravan, which was 200 - 400 m or possibly 400 - 600 m. However, that impediment was readily surmountable. The jury could readily have regarded Mr Bamaga's evidence as to distances to be entirely unreliable. As he did not appreciate that a collision occurred at the time, Mr Bamaga had no reason contemporaneously to take notice of and shortly afterwards to recall the details of the incident. His attempt to recall distances when contacted by police some weeks later is apt to result in an unreliable reconstruction of the incident. Further, the dash-cam footage from Mr Caldwell's Prado demonstrates Mr Bamaga's evidence to be incorrect. The dash‑cam footage shows that Mr Bamaga's Prado passed the appellant's cattle truck just before it was about to collide with the caravan.
Basis on which it was open to the jury to convict the appellant
In our view, it was well-open to the jury to be satisfied, beyond reasonable doubt, that the appellant committed the charged offence in the manner alleged by the State.
The jury could reasonably have accepted, on the basis of the appellant's evidence, that the appellant was watching the caravan, saw its brake lights come on and applied the brakes of his cattle truck to the maximum available extent immediately upon seeing those brake lights come on. The jury could reasonably be satisfied, based on the dash-cam video from Mr Golden's ore quad and the data from the event data recorder on the LandCruiser, that both vehicles were gradually slowing as they approached the bridge, and were both travelling at about 35 km/h at the point of impact. The jury could also reasonably infer from the results of the collision that the appellant's cattle truck was travelling significantly faster than 35 km/h at the point of impact.
Adopting the above line of reasoning, the jury could reasonably be satisfied that the only reasonable and rational inference to be drawn from the evidence, considered as a whole, was that the appellant had failed to maintain an adequate distance between his truck and the deceased's LandCruiser and caravan (being a distance that would allow him to slow or stop his truck in response if the LandCruiser slowed or stopped). The evidence may not have supported a particular inference as to the precise speed of the appellant's cattle truck and its distance from the caravan prior to the collision. However, it could be inferred from the circumstances of the collision that the appellant's cattle truck was travelling so close to the caravan as to give the appellant no opportunity to avoid a collision if the vehicles in front slowed even gradually. That inference would be supported by the appellant's evidence as to his own immediate reaction to seeing the brake lights come on, set out at [62] and [64] above, and his comments to Mr Golden and Mr Mongoo after the collision, set out at [47] and [53] above.
Having drawn the above inference as to the manner of the appellant's driving, it was well open to the jury to be satisfied beyond reasonable doubt that the manner of driving was dangerous to the public or to any person. The appellant was driving a vehicle weighing over 100 tonnes in an area signposted for roadworks. The size and weight of the appellant's cattle truck meant that a collision with another vehicle at any significant speed was highly likely to have catastrophic consequences. It was likely that vehicles in front would have to slow down in an area signposted for roadworks. While the appellant's evidence was that he did not see the speed signs, the signs on the right hand side of the road were readily visible to northward bound traffic and ought to have been seen by him. The jury could properly conclude beyond reasonable doubt that driving a vehicle of the weight and size of the appellant's cattle truck in that area so close to the vehicle in front as to be unable to avoid a collision if the vehicle in front slowed gradually to 35 km/h was objectively dangerous to the public or to any person.
It was also well-open to the jury to be satisfied that the State had proven, beyond reasonable doubt, that the appellant did not have a relevant honest and reasonable but mistaken belief in any relevant state of things. The appellant's evidence as to his own immediate reaction to seeing the brake lights come on, set out at [62] and [64] above, and his comments to Mr Golden and Mr Mongoo after the collision, set out at [47] and [53] above, could satisfy the jury, beyond reasonable doubt, that the appellant did not honestly believe that he was travelling at a distance behind the caravan that gave him sufficient time to slow down and avoid a collision if the LandCruiser slowed. The jury could also be satisfied that the manner of driving referred to at [84] above was such that, if the appellant did honestly believe that there was sufficient time to slow down and avoid a collision, it was not reasonable for him to hold that belief.
It was open to the jury to be satisfied, beyond reasonable doubt, that the appellant was guilty of the offence with which he was charged. That conclusion does not depend on giving any weight to the advantage of the jury in seeing and hearing the evidence as it was given. Rather, the conclusion reflects the view we have reached from our review of the exhibits and the transcript, which satisfy us, beyond reasonable doubt, that the appellant was driving dangerously close to the caravan prior to the collision and was not under any honest and reasonable but mistaken belief as to any relevant state of things. Having reviewed the evidence, we do not have any reasonable doubt of the appellant's guilt, or consider that there is any reasonable possibility that an innocent person has been convicted.
Conviction ground 2: trial judge's direction as to the elements
By ground 2, the appellant contends that the trial judge failed to adequately relate her directions on the law of dangerous driving to the facts of the case. As explained in oral submissions, this ground involves a contention that there were three elements missing from the trial judge's direction as to the element of the driving being in a manner that was dangerous to the public or to any person.
We shall refer to the trial judge's direction on this issue before turning to the appellant's specific complaints about the direction.
Trial judge's direction
The trial judge gave the jury the following directions about the requirement for the State to prove, beyond reasonable doubt, that the appellant drove his cattle truck in a manner that was, having regard to all of the circumstances of the case, dangerous to the public or to any person. Her Honour directed the jury that this question had to be answered 'at the time of the incident'.[66] After identifying this as the critical element for the jury to consider, the trial judge directed:[67]
Now, in terms of dangerous, the first thing you need to do is to make factual findings as to the actual driving manner or behaviour of [the appellant]. The manner of driving encompasses all matters connected with the management and control of a car by a driver when it's being driven including speed and the position of the vehicle on the road.
You will also need to make factual findings as to what [the appellant] knew, or ought to have reasonably have known, about the circumstances in which he was driving. Having made findings as to [the appellant's] manner of driving and the circumstances, you then need to answer the question as to whether the manner of driving, you have so found on the facts, has the necessary quality of being dangerous to the public or any person. The test of dangerousness is objective in nature.
In making this objective assessment you may bring to bear your collective common sense and experience of life. In making this objective assessment, you must have regard to what [the appellant] knew or ought to have reasonably known. For the driving to be dangerous something more than failing to drive with due care and attention is required. Something more than carelessness, or negligence, or a breach of a duty of care is required.
For driving to be dangerous, there must be some feature which is identified not as a want of care, but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle including driving by persons who may, on occasions, drive with less than due care and attention. Put slightly differently, there must be some quality in the speed or manner of the driving which either intrinsically, or in all of the circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to members of the public or to any person who may be upon or in the vicinity of the road on which the driving is taking place.
There must be some serious breach of the proper conduct of a vehicle on a road so serious as to be in reality and not speculatively potentially dangerous to others. The fact that an incident occurred and someone was killed doesn't mean that the driving was dangerous. People on occasion drive dangerously and don't have incidents. On other occasions people who do not drive dangerously do have incidents and cause injury or death. It is not the result that gives the driving the quality of dangerousness, it is the nature of the driving.
The objective physical evidence of the movement of the vehicle can be relevant as a fact from which an inference about the driving behaviour may be drawn. So for example, here the prosecution ask you to draw inferences from the location of tyre marks of the truck on the road that the vehicle was travelling at a speed that [the appellant] was unable to stop after the point of the initial collision. The relevant fact for you to decide is the driving behaviour of [the appellant].
It is not a question of whether he was deliberately driving in the manner, or whether he was intending to drive in the manner. You look at the driving and all of the circumstances and ask, in all of the circumstances was that driving dangerous? So having made findings as to his manner of driving and the circumstances, you then need to answer the question as to whether the manner of driving, so found on the facts, has the necessary quality of being dangerous to the public or any person.
I repeat, the test of dangerousness is objective in nature and in making this objective assessment you must have regard to what [the appellant] knew, or ought to have reasonably known.
[66] Trial ts 325.
[67] Trial ts 326 - 328.
The trial judge then identified the State's case against the appellant in the following terms:[68]
Now, the State case is that [the appellant's] driving behaviour involved a failure to stay far enough away from the back of the LandCruiser towing the caravan. That driving behaviour was dangerous because, it says, it meant that he never really had a chance of avoiding a serious collision with the LandCruiser once the need arose to slow down or stop in response to the LandCruiser slowing or stopping. It was dangerous in all of the circumstances.
[68] Trial ts 328.
The trial judge identified three circumstances on which the prosecution relied as particularly significant:[69]
(1)The size of the appellant's cattle truck.
(2)The speed at which the appellant's cattle truck was travelling, which was not alleged to be in excess of the speed limit but was a speed that made it impossible for him to slow down or stop when the need arose.
(3)The traffic conditions having moved from free-flowing highway to an area of speed restricted roadworks where there was a much higher likelihood that vehicles would have had to slow down, including to speeds much lower than the regular speed limit.
[69] Trial ts 328 - 329.
The trial judge summarised the defence case in the following terms:[70]
Now, what the defence say is that what happened on that day was an accident. It didn't happen because [the appellant] was driving dangerously. You need to consider the state of the bridge, that it had a dip and it was a significant dip unknown to [the appellant], and there is a reasonable possibility that he was driving in a manner that was not dangerous. They suggest that the manner of driving was not dangerous at all. That [the appellant] was driving at a reasonable speed when he came around the bend.
He put his engine brakes on, and when he saw the caravan upon coming around the bend, he reduced speed in response to seeing the caravan. He was watching the caravan. He was responding appropriately in circumstances where things were happening very quickly, and he was fooled by what he perceived to be in front of him. That the traffic - he thought the traffic was flowing normally and it was reasonable for him to expect that the vehicles in front of him would not drop speed to half the posted speed limits.
And, of course, [the appellant] gave evidence that he didn't see those posted speed limits when the speed reduction signs came on. And that is the posted speed limits even in the context of roadworks.
[70] Trial ts 329.
Later in her Honour's summing up, the trial judge gave a very detailed summary of the submissions which had been advanced by both trial counsel.
After retiring to consider their verdict, the jury requested a 'definition of dangerous driving in writing'. The trial judge provided the jury with a written direction which generally reflected the direction quoted at [90] above.[71]
The appellant's contentions
[71] Trial ts 353 - 354.
The appellant does not contend that the direction quoted at [90] above involved any misstatement of legal principle or wrong decision on a question of law. As explained in oral submissions, the appellant's case is that there was a miscarriage of justice by reason of the omission of three matters in the summing up.
First, the appellant says that the trial judge should have directed the jury that their attention had to be focussed on whether the appellant drove dangerously in the approximately 280 m between the 80 km/h sign (where the appellant said he first saw the caravan) and the 60 km/h sign (where the appellant said that he saw the caravan brake lights come on).[72] This is on the basis that the events after the appellant started braking as much as he was able could not constitute the dangerous driving alleged by the prosecution, and the appellant's evidence was that he did not see the caravan prior to the 80 km/h sign. The appellant contends that, during discussions in the absence of the jury, the prosecutor had confined the State's case to that timeframe, and the judge's direction failed to identify this for the jury.[73] By failing to articulate with clarity the period of allegedly dangerous driving, and instead emphasising the physical movement of the appellant's vehicle, the direction created a risk that the jury would substitute proof of dangerous driving with satisfaction that the vehicles ended up in proximity to each other and ultimately colliding.
[72] Appeal ts 28 - 29, 35.
[73] Appellant's Submissions, par 47 - 50; appeal ts 18, 22, 28 - 29.
Secondly, the appellant says that the trial judge did not direct the jury as to the features of the appellant's driving between the 80 km/h and 60 km/h speed signs which the State said was dangerous.[74] The appellant submits that the trial judge's direction left it open to the jury to conclude that, merely because there was a collision, they could deduce that the appellant had not kept far enough apart and the fact that he was driving a truck on unfamiliar road conditions road at significant speed was sufficient to establish dangerous driving beyond reasonable doubt.[75] That is, the trial judge's direction left it open for the jury to focus on the result of the driving rather than the manner of driving.[76]
[74] Appeal ts 35.
[75] Appeal ts 38.
[76] Appeal ts 41.
Thirdly, the appellant submits that the trial judge should have directed the jury to the effect that:[77]
[I]n order to determine whether or not the driving was dangerous the jury had to determine whether or not a reasonable driver in the circumstances of the appellant, that is, taking into account all of the circumstances known to him, would have appreciated that he was driving dangerously.
Directions as to the time of the alleged dangerous driving
[77] Appeal ts 30, 35.
The direction which the appellant contends should have been given identifies a beginning and an end point for the jury's assessment of the manner of the appellant's driving. The beginning point is the 80 km/h sign which was, on the appellant's evidence, the point at which he first saw the caravan. The end point is the 60 km/h sign, which is the point at which, on the appellant's evidence, he began braking as heavily as he could.
We are satisfied that the prosecution did not confine its case of dangerous driving to the manner in which the appellant drove his cattle truck between the 80 km/h and 60 km/h signs. In opening, the prosecution case was put in the following terms:[78]
[P]ut simply, the State case is that [the appellant's] driving behaviour involved failure to stay far enough away from the back of the LandCruiser. That driving behaviour was dangerous because it meant that he never really had a chance of avoiding a serious collision with the LandCruiser once the need arose to slow down or stop in response to the LandCruiser slowing down or stopping. And, as I've mentioned, it's a question of whether that driving behaviour was dangerous in all of the circumstances.
[78] Trial ts 36.
The prosecutor's closing submissions also did not confine the prosecution case to driving in a dangerous manner between the two speed signs. The prosecution case was simply that the appellant was driving too close to the vehicle in front and left himself no opportunity to slow down or stop if the LandCruiser slowed down or stopped.[79] After referring to the detail of the evidence, the prosecutor submitted to the jury:[80]
Now, [the appellant] had entered an area where it was far more likely that vehicles in front of him would slow down, and the fact that it would have been more likely should have been obvious to him.
Despite that, he let his huge vehicle get so close to the LandCruiser that when [the appellant] needed to slow down to avoid a collision, he couldn't. So driving a vehicle like that close to the back of someone is bad enough, I suggest, but doing it in an area like roadworks, where it's far more likely that the car in front will have to slowdown is just asking for a crash, and it made [the appellant's] driving all the more dangerous.
So, members of the jury, there you have the circumstances that make [the appellant's] driving so dangerous. He was driving [too] close when (1) he was going at a significant speed, (2) [h]e was in a huge vehicle, and (3) he was in an area where it was far more likely that vehicles in front would have to slow down in response to hazards.
[79] Trial ts 263 - 264.
[80] Trial ts 274.
The appellant relies on the following exchanges between the prosecutor and the trial judge in the absence of the jury. The exchanges arose in the course of debate as to the direction to be given under s 24 of the Criminal Code. The prosecutor referred to a passage of the decision in Jimenez which included the following statement:[81]
In the present case, where there was evidence that the applicant fell asleep at the wheel and there was no real evidence that he had any warning of the onset of sleep, it was also essential for the trial judge to identify the period of driving during which it was alleged that the driving was dangerous.
[81] Jimenez (584).
After the prosecutor referred to the page of Jimenez on which this passage appears, the following exchange occurred between the prosecutor and trial judge:[82]
BURROWS DCJ: Well, I've got it. So let's start first at [584]. It's essential for me to identify the period of driving during which it's alleged the driving was dangerous.
STANWIX, MR: Yes.
BURROWS DCJ: Now, that was a matter raised by Mr Vandongen in closing. Just clarify for me what the State says is the period during which it's alleged that the driving is dangerous.
STANWIX, MR: It's the period on - we can't say exactly when it starts, but it's the period on that stretch after the bend and up to the point where it becomes obvious that [the appellant] has to stop and can't.
BURROWS DCJ: Okay.
STANWIX, MR: So by that point he has clearly failed to maintain an adequate distance. And in practical terms, really, we're talking about the point where the brake lights come on.
BURROWS DCJ: That's what I was thinking. Because you couldn't suggest that it was dangerous driving when he came round the bend and saw the vehicle.
STANWIX, MR: No. (emphasis added)
[82] Trial ts 301.
The judge and counsel discussed the detail of the appellant's account of the incident, including that he saw the brake lights of the caravan just past the 60 km/h sign.[83] The following exchange then occurred between the prosecutor and trial judge:[84]
BURROWS DCJ: Just past the 60 sign. Yes. All right. So on that chronology, the period of dangerousness?
STANWIX, MR: On [the appellant's] - - -
BURROWS DCJ: Evidence.
STANWIX, MR: - - - evidence. Well, it's not immediately when he comes around the bend, but the circumstances concerning it start then because he is immediately aware that the van is there, and then it's over that period up until the brake lights come on that he advances too close and fails to maintain an adequate distance. (emphasis added)
[83] Trial ts 301 - 302.
[84] Trial ts 303.
The debate then returned to the direction which should be given under s 24 of the Criminal Code.
When the above passages are considered as a whole, the prosecutor was doing no more than identifying the points of dangerous driving on the appellant's evidence. However, he was not accepting the appellant's account (which was disputed in the prosecutor's closing submissions). Nor was he confining the prosecution case by reference to an account which his closing submissions had invited the jury to reject.
For the reasons explained above, the jury was not obliged to accept the appellant's evidence as to the manner in which the incident occurred. If the appellant had been travelling at roughly 70 ‑ 80 km/h (as he asserted), then the objective evidence was inconsistent with the appellant having begun braking as heavily as he could just past the 60 km/h sign, which was about 450 m from the point of impact. Given the state of the evidence, it would not have been appropriate for the trial judge to have suggested that the jury confine their attention to the manner of the appellant's driving between the 80 km/h and 60 km/h speed signs.
Directions as to the manner in which the appellant's vehicle was driven
In our view, there is no merit to the appellant's submission, summarised at [98] above, to the general effect that the trial judge's direction left it open for the jury to focus on the result of the driving rather than the manner of driving. The directions set out at [90] above clearly required the jury to, first, make findings as to the actual manner of driving and, second, to determine whether the manner of driving had the necessary quality of being dangerous to the public or any person. The trial judge specifically directed the jury that the fact that an incident occurred and someone was killed did not mean that the driving was dangerous. Her Honour also directed the jury that it is not the result that gives the driving the quality of dangerousness, but rather it is the nature of the driving.
Further, the directions quoted at [91] above and summarised at [92] above identified the manner of driving alleged by the State, being failure to maintain an distance that would allow him to slow or stop his cattle truck in response if the LandCruiser slowed or stopped, and the reasons why the State alleged that manner of driving to be dangerous. There is no merit to the appellant's submission that the trial judge did not direct the jury as to the features of the driving which the State said was dangerous.
When the prosecutor's opening and closing submissions, and the trial judge's summing up, are considered as a whole it was, in our view, made clear to the jury that the manner of driving alleged by the State to be dangerous was that of the appellant failing to maintain an adequate distance between his truck and the deceased's LandCruiser and caravan (being a distance that would allow him to slow or stop his truck in response if the LandCruiser slowed or stopped). In our view, no miscarriage of justice arose from the lack of a more specific direction as to that matter. We are fortified in that view by the fact that the appellant's very experienced and competent trial counsel raised no objection to the trial judge's direction. It would be expected that defence counsel, Mr Vandongen SC, would have done so if, in the atmosphere of the trial, there was reason to be concerned that the jury might apprehend that the dangerous driving occurred or continued after the appellant began braking his cattle truck as hard as possible.
Perception of an ordinary person in the position of the appellant
It appears from the decision of the Full Court of the Supreme Court of South Australia in R v Hendriksen,[85] that there is a long-standing practice in that State of directing juries as to what is meant by driving in a manner dangerous to the public by reference to the perception of an ordinary person in the position of the accused. As noted at [99] above, the appellant submits that the trial judge should have given a direction of this kind.
[85] R v Hendriksen [2007] SASC 304; (2007) 98 SASR 571 [30] - [52].
The direction was articulated in the following terms in R v Coventry:[86]
[D]riving in a manner dangerous to the public means the act of driving in a manner which any ordinary person (in the situation of the driver) would recognize as dangerous, in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road - the commonplace incidents of the use of the highway in question under the conditions of modern transport by fast-moving vehicles.
[86] R v Coventry [1938] SASR 79, 86.
In Hendriksen, the court was concerned with s 19A(3) of the Criminal Law Consolidation Act 1935 (SA), which relevantly provided:
A person who—
(a)drives a vehicle or operates a vessel in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to the public; and
(b)by that culpable negligence, recklessness or other conduct, causes harm to another,
is guilty of an indictable offence.
The earlier South Australian provision considered in Coventry was expressed in very similar terms.[87]
[87] See R v Coventry [1938] SASR 79, 80.
The terms of the South Australian legislation and s 59(1)(b) of the Act are quite different, although both refer to driving in a manner which is dangerous to the public.
The decision of the Court of Criminal Appeal in Coventry was the subject of an unsuccessful application for special leave to appeal to the High Court. In refusing special leave, the plurality indicated that the refusal of special leave should not be taken as agreement with all the views expressed in the Court of Criminal Appeal's judgment.[88] While emphasising the objective standard,[89] the High Court did not adopt (but nor did it specifically criticise) the reference to the perceptions of an ordinary person in the position of the accused. The decision of the Court of Criminal Appeal in Coventry was referred to in passing by the Court of Criminal Appeal in this State in Smith v The Queen,[90] without reference to the perceptions of an ordinary person in the driver's position.
[88] R v Coventry (1938) 59 CLR 633, 636.
[89] R v Coventry (1938) 59 CLR 633, 637 - 638, 639.
[90] Smith v The Queen [1976] WAR 97, 104.
A direction referring to dangers which would be recognised by a reasonable person in the position of the driver was adopted by the Victorian Court of Appeal in R v De Montero.[91]However, that decision was overruled by the High Court in King v The Queen.[92] In the High Court, the majority held that the assessment of whether driving was dangerous for the purposes of the Victorian provision depended on an objective test of whether there had been some serious breach of the proper conduct of a vehicle upon the roadway, so serious as to be in reality potentially dangerous to others who may be upon or in the vicinity of the roadway.[93] That application of the High Court's earlier decisions in McBride and Jiminez reflects the approach generally adopted in Western Australia.
[91] R v De Montero [2009] VSCA 255; (2009) 25 VR 694[75] - [80].
[92] King v The Queen [2012] HCA 24; (2012) 245 CLR 588 [44] - [46]. See also Rawiri v The Queen [2013] VSCA 130 [8], [15] - [17].
[93] King [32] - [33], [42], [44], [46].
More recently, the Victorian Court of Appeal articulated the test as requiring 'an assessment of the degree of risk or danger created by the accused person's conduct' without reference to a reasonable or ordinary person in the position of the driver.[94]
[94] Aston v The Queen [2019] VSCA 225; (2019) 90 MVR 62 [28].
The approach taken by the South Australian courts does not reflect the general practice established by decisions of this court in Western Australia.[95] It is not an approach to directing juries which is indicated as necessary by any decision of the High Court of Australia or this court or its predecessor.
[95] Donovan [50]; Gray v The State of Western Australia [2015] WASCA 108; (2015) 71 MVR 31 [77] - [80] (Mazza JA; McLure P & Newnes JA agreeing).
We are satisfied that the South Australian decisions do not provide a basis for this court to depart from the approach it has taken to date. That approach reflects the observations of French CJ, Crennan and Kiefel JJ in King [46] that '[t]he assessment of whether the manner of driving was dangerous depends on whether it gave rise to the degree of risk set out by Barwick CJ in McBride and adopted by the plurality in Jiminez in relation to s 52A of the Crimes Act 1900 (NSW). That is the level of risk which should inform a trial judge's direction to a jury in respect of the offence [of dangerous driving causing death]'. We also note the appellant's submission that there is no material difference between the South Australian and Western Australian approaches.[96] If that is so, then there was no substantive error in the trial judge directing the jury in the manner juries are usually directed in this State.
[96] Appeal ts 73.
In our view, the trial judge directed the jury consistently with the elements of the offence created by s 59(1)(b) of the Act as summarised at [16] - [23] above. No miscarriage of justice arose from the fact that the trial judge did not frame the question for the jury's determination in terms of what an ordinary person in the appellant's position would have perceived.
For the above reasons, in our view, ground 2 is not established.
Conviction ground 3: Liberato direction
In substance, ground 3 complains that the trial judge did not give a direction of the kind identified by Brennan J in Liberato v The Queen.[97] However, the circumstances which Brennan J identified as requiring such a direction were remote from the present case. His Honour observed:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. (emphasis added)
[97] Liberato v The Queen (1985) 159 CLR 507, 515.
In De Silva v The Queen,[98] the majority of the High Court held that no miscarriage arose where there was a conflict between the complainant's evidence and the accused's statements in a police statement and no Liberato direction was given. The majority noted that the Liberato direction is addressed, in terms, to a trial at which there is conflicting sworn evidence, but should also be given in some circumstances where the conflict is between the complainant's evidence and answers given by an accused in a police interview.[99] The majority held that a Liberato direction should be given where the trial judge perceives that there is a real risk that the jury will reason that the accused's evidence, or the accused's answers in a record of interview, can only give rise to a reasonable doubt if they believe the accused's account to be truthful, or that a preference for the evidence of the complainant over the accused's account suffices to establish guilt.[100]
[98] De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100.
[99] De Silva [11].
[100] De Silva [10] - [11].
The majority in De Silva identified the preferable form of a Liberato direction in the following terms:[101]
(i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
[101] De Silva [12].
The majority indicated that a Liberato direction was not required in every case even where there was a conflict between a complainant's and an accused's account. The majority observed:[102]
Whether a Liberato direction is required will depend upon the issues and the conduct of the trial. At a trial where there has been no suggestion, whether express or implied, that the jury's determination turns on which of conflicting prosecution and defence versions is to be believed, there may be no need to expand on conventional directions as to the onus and standard of proof.
[102] De Silva [13].
The majority held that, in the particular circumstances in De Silva (which involved a conflict between the complainant's evidence and the accused's account in a record of interview in a rape case), a Liberato direction was not required.
In the present case, there was no conflict between the account given by a prosecution witness and the appellant. Nor could the jury have been properly directed in the suggested terms quoted at [125] above, given the aspects of the appellant's evidence, noted above, which were capable of being regarded as inculpatory. Any form of Liberato direction would need to have been modified to identify the particular parts of the appellant's evidence which, if the jury believed them or thought they might be true, would lead to a not guilty verdict. The task of identifying relevant parts of the appellant's evidence would be significantly complicated by the evaluative nature of the questions posed for the jury's consideration. Whether a failure to positively reject particular evidence would lead to a not guilty verdict would depend in part on the jury's evaluative assessment of the dangerousness of driving in a particular manner. A Liberato direction modified to the circumstances of this case would have been likely to have been so complicated and qualified as to have run a risk of confusing the jury rather than to clarify directions on the onus of proof.
Further, this was not a case of conflicting accounts. There was no occasion in the present case for the jury to ask, 'Who is to be believed?'. Rather, putting aside the s 24 defence, the critical task for the jury was to consider whether the only reasonable inference to be drawn from the facts established by the evidence (which may include aspects of the appellant's evidence) which the jury accepted, considered as a whole, was that the appellant drove in a manner that the jury assessed was dangerous to the public or any person in all the circumstances. The onus of proof relevant to that task was adequately explained by the trial judge's general directions as to the onus and standard of proof, and her Honour's direction that:[103]
In a criminal trial, before you draw an inference or come to a conclusion against [the appellant], you must be satisfied that it is the only rational and reasonable inference or conclusion that can be drawn from the facts established by the evidence.
[103] Trial ts 323.
In the present case, the question of mere preference of a complainant's evidence over the appellant's evidence did not arise. The trial judge clearly did not perceive any real risk that the jury might reason that the appellant's evidence could only give rise to a reasonable doubt if they believe his account to be truthful. Nor, in the circumstances of this case, do we perceive such a risk from our review of the transcript. Further, the fact that Mr Vandongen did not seek such a direction tends against the existence of a risk that would call for a Liberato direction to be given.[104]
[104] See De Silva [35].
The appellant also sought to raise, under the auspices of ground 3, the adequacy of the trial judge's direction as to the evidence of the appellant's good character. The appellant contends that the trial judge should have directed the jury that they were required to take the character evidence into account in assessing whether they were prepared to draw the inference that he was driving dangerously and in evaluating the credibility of his evidence.[105]
[105] Appeal ts 39 - 40.
In our view, these submissions as to the good character evidence fall outside the scope of the grounds of appeal. In any event, the point is without merit. The trial judge gave an orthodox and adequate direction as to the character evidence in the following terms:[106]
You heard from Mr Dellar, Mr Schmidt, Mr Oakley. They all gave evidence of [the appellant's] good character. They had all known him for a number of years and said his general reputation in the community was of an honest, hardworking and competent man. Now, the evidence of his good character is relevant to his credibility. It tends to show he is a person whose evidence can be accepted and relied upon.
It is open for you to consider the evidence of [the appellant's] good character in considering whether the State has satisfied you beyond reasonable doubt that he is guilty of the charges with which he is charged. At the same time you must, of course, remember that evidence of good character cannot prevail against evidence of guilt which you find to be convincing.
[106] Trial ts 347.
This direction indicates that it was open to the jury to take account of the good character evidence both in assessing the appellant's credibility and deciding whether the State had proven the charged offence. It was not appropriate for the judge to have directed the jury that they were required to give any particular weight to that evidence. That was a matter for the jury, especially in a case where, as noted at [80] above, the jury could reasonably take the view that the charged offence was not significantly less likely to have been committed by a person of prior good character.
In our view, there is no merit to ground 3.
Disposition of appeal against conviction
For the reasons explained above, in our view none of the appellant's grounds of appeal have any reasonable prospect of succeeding. We would refuse leave to appeal on each ground and dismiss the appeal against conviction.
Appeal against sentence
As noted at [9] above, the appellant appeals against sentence on the ground that the total effective sentence of 3 years 10 months' immediate imprisonment infringes the first limb of the totality principle. The appellant does not challenge the decision to impose sentences of immediate imprisonment, or the length of the individual sentences of 2 years 10 months' immediate imprisonment for count 1 and 12 months' immediate imprisonment for count 2.
Circumstances of the offending
The trial judge made findings as to the general circumstances of the collision which generally reflected the uncontentious facts noted above.[107] The trial judge said:[108]
I find and accept your evidence that you applied your brakes when you noticed the caravan brakes come on, and you applied those brakes as heavily and as urgently as you could. Despite your efforts at that point to slow down, your truck ran into the back of the caravan, and that was because you were too close to the back of the caravan for the speed that you were doing at that point.
[107] Trial ts 393 - 396.
[108] Trial ts 396.
At the point of impact, the LandCruiser was travelling at approximately 34 km/h. The force of the initial impact propelled the LandCruiser into the path of Mr Caldwell's Prado, and those two vehicles collided. The appellant's cattle truck continued on and either struck the LandCruiser or the caravan for a second time. The appellant's cattle truck then crashed into a ditch on the eastern side of the road. The LandCruiser rolled several times before coming to rest on the southern bank of the creek. In the course of the crash, Mark and Lara Dawson were killed. Their children were able to climb out of the damaged LandCruiser.[109]
[109] Trial ts 396.
The trial judge found that the appellant was an honest witness at trial, and did his best to recall details from what was a very fast-moving situation. Her Honour accepted that he began braking by applying his engine and trailer brakes in the manner that he described at trial as soon as he emerged from the bend. She also accepted that the appellant failed to see the roadworks signs, other than the 80 kilometre sign that was face-down lying on the ground.[110]
[110] Trial ts 397.
The trial judge made the following findings as to the appellant's driving:[111]
I characterise your driving as misjudgement, which was contributed to by a lack of attention of the conditions of the road and the movement of the vehicles on the road at the time. That misjudgement was contributed to by your failure to see the road signs. If you had seen those road signs, then you would have anticipated the reason, or been aware of the reason, that the vehicles ahead were slowing down.
You failed to appreciate the level at which both Mr Golden's truck and the LandCruiser were gradually decelerating towards the bridge, particularly as those vehicles passed through the region from the first rough surface sign. And you failed to brake sufficiently to reduce your own speed to maintain a safe distance from those vehicles, and particularly, the caravan, which … was in front of you.
It was your greater speed relative to the LandCruiser that caused you to move closer and closer to the back of the caravan. You failed to notice the diminishing distance between the two vehicles until you were so close that it was impossible for you to slow down and sufficiently avoid a collision even with urgent and forceful braking.
So I do find that you failed to maintain a safe distance as a result of misjudgement contributed to by a lack of attention over the portion of the road leading up to the bridge. Your failure to maintain a safe distance was dangerous, because you had maintained a significant speed considering how close you had gotten to the back of the caravan. You were driving a very large and heavy vehicle, and you were travelling in an area that was undergoing roadworks.
Personal circumstances
[111] Trial ts 397 - 398.
The appellant was 49 years of age at the date of sentencing. He grew up on a cattle station with a supportive family and had worked on cattle stations since leaving school in year 12. He had purchased a cattle station in 2015, and shared ownership of another station purchased in 2013 with his brother and sister. He is in good physical and mental health.[112]
[112] Trial ts 398.
At the time of sentencing, the appellant had separated from his de-facto partner, with whom he commenced a relationship in 1998. They had three children, aged 14, 13 and 9 years at the date of sentence. The appellant enjoyed significant family and community support, reflected in a very large number of references provided to the court. He had no prior convictions, and was remorseful for the offending.[113]
Trial judge's approach
[113] Trial ts 398 - 399, 401 - 402.
The trial judge identified general deterrence as ranking 'high in the list of relevant considerations',[114] observing that:[115]
The tragedy that occurred that day was avoidable. The message needs to be conveyed that failure to drive vehicles with anything less than complete focus and attention can have devastating consequences. This is especially so when vehicles, the size of that that you were driving, are involved.
[114] Trial ts 399 - 400.
[115] Trial ts 400.
The trial judge found that it was unlikely that the appellant would ever offend, in any way, again, so the need for specific deterrence was 'quite reduced'.[116] Her Honour noted that:[117]
In relation to the aggravating factors, there are no egregious features in your case, such as excessive speed or hooning. There was no alcohol, nor any suggestion of fatigue, and to the extent that you were inattentive, it was not due to some activity, such as changing the channel on a radio, or using a mobile phone, or looking out the window to the side and not ahead. This was not a case of you deliberately risk-taking in any form.
[116] Trial ts 400.
[117] Trial ts 401.
However, the trial judge recognised that the fact the appellant was driving a very large vehicle aggravated the seriousness of the offences. The judge said:[118]
Vehicles of the kind driven by you pose a particular danger to the public if driven irresponsibly. They are especially capable of producing enormous damage to human life, as they did in this case.
The trial judge also recognised that the tragic consequences of the appellant's action was the loss of two lives in circumstances where the loss was witnessed by the deceased's two children.
[118] Trial ts 401.
The trial judge identified the following mitigating factors:[119]
(1)The appellant had no prior criminal record.
(2)The appellant's exemplary character.
(3)The appellant was genuinely remorseful for his actions and had an appreciation of their impact on his victims.
(4)The appellant offered to plead guilty to careless driving occasioning death at an early stage in the proceedings, which demonstrated an acceptance of responsibility in the sense that it involved acceptance of some fault on his part at an early stage.
(5)The appellant conducted the trial in a cooperative manner which was consistent with his remorse, in that he did not seek to blame others, confined the issue to whether his driving was dangerous in all the circumstances and avoided the need for the deceased's children to give evidence.
(6)The appellant had set up a trust fund for the deceased's children.
[119] Trial ts 401 - 403.
The trial judge indicated her satisfaction that a sentence of immediate imprisonment was the only appropriate sentence,[120] and proceeded to impose the sentences noted above.
The totality principle
[120] Trial ts 403 - 404.
McLure JA (Steytler P & Miller JA agreeing) summarised the totality principle in Roffey v The State of Western Australia:[121]
The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up. (citations omitted)
[121] Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].
The following general principles are also well established:[122]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(3)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(4)The real question is whether the total effective sentence imposed on the offender is unreasonable or plainly unjust.
[122] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21].
If, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance.[123]
Sentencing for dangerous driving causing death
[123] See Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).
The maximum penalty for dangerous driving causing death, in circumstances which do not involve circumstances of aggravation, is 10 years' imprisonment.[124]
[124] Section 59(3)(b)(i) of the Act.
As was recognised in Olive,[125] there is no tariff for offences of this kind because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum penalty.
[125] Olive [74].
In Olive,[126] Buss JA reviewed a range of sentences in cases involving offences against s 59(1) of the Act, noting that a sentencing judge will not necessarily make an error, in the application of the totality principle or otherwise, by ordering that individual sentences for multiple counts of dangerous driving occasioning death, which arise out of one transaction or continuing episode, be served wholly cumulatively.[127]
[126] Olive [75] - [83].
[127] Olive [84].
In Eves v The State of Western Australia,[128] Steytler P and McLure JA observed that, in cases involving multiple offences arising out of a motor vehicle accident, it is open to the sentencing judge to order at least some degree of cumulation. However, it is unsound in principle to sentence in respect of each element of the offence on each count and then wholly cumulate the sentences if that approach would result in multiple punishment for a common element of each offence; for example, that of dangerous driving.
[128] Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259.
The appellant refers to the decisions of this court in Timbrell v The State of Western Australia,[129] Kershaw v The State of Western Australia[130] and Rubin v The State of Western Australia.[131]
[129] Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1.
[130] Kershaw v The State of Western Australia [2014] WASCA 111; (2014) 66 MVR 551.
[131] Rubin v The State of Western Australia [2016] WASCA 2; (2016) 75 MVR 274.
Kershaw is an instructive example of the application of the totality principle to offences against s 59(1) of the Act involving multiple deaths arising from the same incident. In that case the 50-year-old offender was driving a truck in a fatigued state, knowing that he was tending to doze and should have stopped and rested. The offender's vehicle drifted onto the gravel shoulder area of the road and collided with two vehicles which had stopped to change a flat tyre on one of the vehicles. Two men standing near the vehicles were killed in the collision. The offender pleaded guilty at an early opportunity and was remorseful. He was an experienced truck driver who had prior convictions for traffic offences. He was sentenced to 4 years' immediate imprisonment on each of two counts of dangerous driving causing death, and a total effective sentence of 5 years' immediate imprisonment. A majority of this court dismissed the offender's appeal against sentence on manifest excess and totality grounds.
Having regard to the differences between the cases, the sentences imposed in Kershaw and the other cases referred to above are broadly consistent with that imposed in the present case. The seriousness of the offending in Kershaw may be regarded as greater than the present case, and the mitigating factors as in some respects less than those available to the appellant. However, the offender in Kershaw had the benefit of an early plea of guilty, which the appellant does not. Further, in dismissing the appeal, Buss and Mazza JJA both recognised that, in order to properly mark the offender's overall criminality in the killing of two victims, it was necessary to order some accumulation of the individual sentences.[132]
Disposition
[132] Kershaw [124], [183].
As noted above, the appellant does not challenge, and in our view could not reasonably have challenged, the length of the individual sentences of imprisonment imposed by the trial judge. The substance of the appellant's argument concerns the accumulation of the sentences (after the reduction of the individual sentence for count 2 for totality) and the resulting total effective sentence.
In assessing the overall criminality involved in the appellant's offending, it is necessary to have regard to the significant mitigating factors in his favour which the trial judge identified. It is also relevant to note that the offending arose, on the trial judge's unchallenged findings, through misjudgment rather than deliberate risk-taking behaviour. However, the appellant drove a vehicle weighing over 100 tonnes at a distance which gave him no opportunity to avoid a collision if the vehicle in front slowed for signposted roadworks. The catastrophic consequences likely to follow from a collision involving such a heavy vehicle eventuated, resulting in the tragic deaths of Mark and Lara Dawson in the presence of their children. The criminality involved in the appellant's offending was significant and, as the trial judge recognised, general deterrence was an important sentencing consideration.
In our view, as in Kershaw, it was necessary in the present case to order some accumulation of the individual sentences in order to properly mark the appellant's overall criminality in causing the deaths of two victims. We are not persuaded that the trial judge erred in effectively ordering an accumulation of 12 months of the sentence which would otherwise have been imposed on count 2 upon the 2 year 10 months' sentence imposed on count 1.
Having regard to:
(1)the maximum penalties for the offences of which the appellant was convicted;
(2)the overall criminality involved in both of the appellant's offences, viewed in their entirety having regard to all relevant circumstances (including those referable to the appellant personally);
(3)the customary sentencing practices for these kind of offences; and
(4)all relevant sentencing factors and principles,
we are satisfied that the total effective sentence of 3 years 10 months' immediate imprisonment imposed in this case was not unreasonable or plainly unjust. The sole ground of appeal against sentence is without merit.
Orders
For the above reasons, we would make the following orders in the appeals:
CACR 22 of 2020: Appeal against conviction
(1)Leave to appeal is refused on each ground of appeal.
(2)The appeal is dismissed.
CACR 182 of 2019: Appeal against sentence
(1)Leave to appeal is refused on the sole ground of appeal.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Associate to the Honourable Justice Mitchell8 JANUARY 2021
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