DUNN v Police - [2011] SASC 181

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DUNN v POLICE
[2011] SASC 181
Judgment of The Honourable Justice Kelly
19 October 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS
Appeal against conviction - appellant found guilty of one count of aggravated driving without due care contrary to s 45(3) of the Road Traffic Act 1961 (SA) - aggravation was caused by the serious harm suffered by the victim - Magistrate found that the appellant’s driving departed from the standard reasonably required of a prudent driver - appellant appealed on the grounds that the Magistrate's finding was unsafe and unsatisfactory - whether the Magistrate gave due weight to the evidence before the court - whether the Magistrate assessed the totality of the evidence
Held: appeal dismissed - the Magistrate correctly assessed all the evidence before the court and gave due weight and consideration to each of the alternative scenarios put forward by the appellant – Magistrate’s findings justified on the evidence - no basis for appellate court to interfere.
Road Traffic Act 1961 (SA) s 45(3); Magistrates Court Act 1991 (SA) s 42, referred to.
Taylor v Hayes (1990) 53 SASR 282; Tazroo v Police [2002] SASC 155; Police v T, AG [2006] SASC 299; Police v Dorizzi (2007) 84 SASR 416; Police v Melisi (2010) 106 SASR 105; Stoeckel v Harpas (1971) 1 SASR 172, considered.

DUNN v POLICE
[2011] SASC 181
Magistrates Appeal: Criminal
KELLY J.
Introduction

The appellant appeals against a conviction recorded in the Elizabeth Magistrates Court on one count of aggravated driving without due care contrary to s 45 of the Road Traffic Act 1961 (SA). The circumstance of aggravation pleaded was that serious harm was caused to another person.
On 15 June 2010 a truck driven by the appellant collided with a motorcycle driven by the victim at the intersection of Old Port Wakefield Road, Ridgeway Road and Stanton Road, Virginia. The motorcyclist sustained serious injuries including concussion and multiple bone fractures which necessitated amputation of his left leg below the knee.
The appellant’s complaint on appeal is that the conviction is unsafe and unsatisfactory. The main arguments advanced in support of the appeal are that the Magistrate accorded insufficient weight to the appellant’s evidence, that he failed to give adequate weight to other reasonable hypotheses on the evidence consistent with innocence and that he failed to take into account the totality of the evidence in finding the charge proved.
The Evidence at Trial
At about 1.15 pm on 15 June 2010 the appellant was driving his truck in an easterly direction along Ridgeway Road intending to turn right onto Old Port Wakefield Road. There is a give way sign and a white dotted line at the end of Ridgeway Road. The motorcyclist, Mr Wiseman, was travelling north along Old Port Wakefield Road. There is a solid unbroken white line which commenced about 30 metres back from the junction of the Old Port Wakefield Road, Ridgeway Road and Stanton Road. That junction is not a classic cross intersection, but Stanton Road runs in an easterly direction off Old Port Wakefield Road at an angle other than 90 degrees.
There were two eye witnesses to the collision. Mr Antonio Pangallo was driving a Mitsubishi truck north along Old Port Wakefield Road. He was travelling at about 60 kilometres per hour intending to turn left down Ridgeway Road. He observed Mr Wiseman’s motorcycle overtaking his truck about 200 metres before the intersection of Ridgeway Road and Old Port Wakefield Road. The motorcycle was travelling at about 70 kilometres per hour.
A white four-wheel drive was about 80 metres ahead as the motorcyclist overtook Mr Pangallo’s truck. That four-wheel drive was indicating a left-hand turn into Ridgeway Road. The motorcyclist completed the overtaking manoeuvre and returned to the centre of the northbound lane for traffic at about 100 metres before the intersection of Ridgeway Road. Mr Pangallo observed the yellow truck stationary at the intersection with Ridgeway Road when he was about 100 metres away from the intersection. The four-wheel drive had just turned down Ridgeway Road. As Mr Pangallo drew closer to the intersection the truck pulled out and the motorcyclist swerved. The front of the truck collided with the left side of the motorcycle.
Mr Pangallo said the truck pulled out when the motorcyclist was only about five metres from the intersection. He disagreed with the proposition which was put to him in cross‑examination that the motorcycle was overtaking the four‑wheel drive very shortly before the collision. He said the four-wheel drive had already turned left into Ridgeway Road. He said the truck stopped in the centre between the two carriageways after the collision.
The passenger in Mr Pangallo’s truck, Mr Lazaraki, became aware of the motorcyclist in his peripheral vision as it overtook the truck. At that time he had been looking at his phone. Mr Lazaraki was less clear about his observations than Mr Pangallo. He expressed the view that the motorcycle overtook both the truck and the four-wheel drive before the collision. However later he said he was actually looking at his phone when he then looked up and saw the motorcycle overtaking, and then pulling into its lane, and then he noticed the truck as well. He thought that the motorcycle had actually settled in its lane when the collision occurred. He did not see the motorcycle swerve.
Mr Wiseman, the motorcyclist, has no memory of anything subsequent to the commencement of the overtaking manoeuvre of Mr Pangallo’s truck except for a flash of vision of a bull‑bar in front of him.
The appellant gave evidence in the trial. He said he observed two vehicles travelling from the south heading in a northerly direction and waited at the intersection. He said he did so, even though he had time to pull out, because he made the decision that they were probably doing anything up to 100 kilometres per hour and thus he waited. He saw the white four-wheel drive when it was approximately 100 metres away from the intersection. Some distance behind was the other truck, obviously Mr Pangallo’s. He thought the truck was about 30 to 40 metres behind the four-wheel drive. He saw that both vehicles were slowing down to turn left and thus made a decision to exit (by this he means start his right hand turn). He did not see the motorcycle. When asked about what happened he said:[1]
The vehicles were both slowing down to turn left. I made a decision to exit the intersection, as the four-wheel drive was turning left, knowing that that was his movement, and I had also made the assessment that the truck, even if he had changed his mind, my truck would have left the intersection by then and there would have been time for him to go behind me, to go past. So I’m feeling in my own heart and mind that there is nothing on the right coming, there is definitely nothing on my left, the two vehicles on my right have already committed to turn left, I’m coming out.
[1] Transcript at 58.
The appellant said that he did not see the motorcyclist until he saw a “flash” in his eye when the collision was imminent. He maintained that he did not see the motorcyclist because immediately prior to the collision the motorcyclist was travelling on the incorrect side of the road overtaking the four-wheel drive in a dangerous and illegal manoeuvre.
There was evidence in the form of an agreed statement by another witness Ms Janet Jenkin, who stopped to assist Mr Wiseman after the collision who said that he told her “I pulled out to overtake a car in front of me and didn’t see the truck until it was too late”.
That is a brief summary of the evidence before the Magistrate.
The Legal Principles
This appeal is by way of a rehearing.[2] If the Court reaches a different view on the evidence than the Magistrate it must give effect to that by substituting its view for the Magistrate’s or by remitting the matter for rehearing. [3] However due weight must be given to the advantage which the Magistrate had in seeing and hearing the witnesses, and appropriate weight must be given to the Magistrate’s findings on credibility.[4]
[2]    Magistrates Court Act 1991 (SA) s 42.
[3]    Taylor v Hayes (1990) 53 SASR 282 at 291; Tazroo v Police [2002] SASC 155; Police v Dorizzi (2007) 84 SASR 416.
[4]    Police v A, TG [2006] SASC 299.
The question for determination before the Magistrate was whether the appellant’s driving constituted a departure from the standard of driving required, such as to contravene s 45 of the Road Traffic Act 1961 (SA). The legal principles applicable to a charge of driving without due care are conveniently stated in the judgment of White J in Police v Melisi:[5]
The issue is to be determined objectively. The obligation to drive with due care is the duty to exercise the standard of care which one would expect of a reasonably prudent driver in the like or similar circumstances. In the assessment of whether a particular driver has departed from that standard, it is immaterial that he or she had been unaware of, or did not advert to, the risks which the manner of driving presented to other road users. The reasonably prudent driver is expected to drive with a defensive outlook, that is, a lookout "that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger”.[6]
[footnotes omitted]
[5] Police v Melisi (2010) 106 SASR 105 at [17].
[6] Stoeckel v Harpas (1971) 1 SASR 172.
Both parties on appeal accepted that in this case the Magistrate applied the correct legal principles.
Discussion
Here there were three different accounts of the collision before the Magistrate. The Magistrate accepted that the witnesses were all honest however he did not find them all to be accurate. In the end he accepted beyond reasonable doubt that Mr Pangallo, the Mitsubishi truck driver, gave accurate evidence. Having reviewed the evidence for myself it is not hard to see why the Magistrate came to the conclusion which he did. Mr Pangallo was the driver of the truck which the motorcyclist overtook prior to the collision. He, not his passenger Mr Lazaraki, had every reason to be focused on the view ahead. His view was unobstructed. Mr Lazaraki was to some degree distracted by looking at his phone during the crucial events. His evidence was unclear whether the motorcyclist had settled into his lane after overtaking Mr Pangallo’s truck and the while four-wheel drive or whether it was overtaking the four-wheel drive just prior to the collision. Moreover Mr Pangallo, unlike Mr Lazaraki, was not shaken in cross‑examination. He was very clear about the position of the motorcyclist in the centre of the northbound lane ahead after overtaking his truck. Mr Lazaraki was obviously unsure of some of the critical events and said so.
There was an obvious problem with the appellant’s evidence. He saw Mr Pangallo’s truck approaching. He also saw the white four-wheel drive approaching. He was adamant that he could see the four-wheel drive and explained that he had the advantage both as to height and angle when viewing the roadway on which the vehicles were approaching. Nevertheless the appellant did not at any stage see the motorcycle.
On any view of the matter the motorcycle was then approaching on Old Port Wakefield Road. He overtook Mr Pangallo’s truck and had settled into the lane ahead. Given the appellant’s vantage point he is at least correct about the fact that he should have seen the approaching motorcycle. Even on the scenario which the appellant put forward, namely that the motorcyclist must have been undertaking an illegal manoeuvre in attempting to overtake the white four-wheel drive as it approached the intersection against an unbroken white line, the appellant still should have seen the motorcyclist at some stage. Not only did the Magistrate consider that particular scenario, but he gave the appellant an opportunity to comment on that:[7]
QAt the point you decided it was okay for you to move off from your stationary position, could you see any part of Old Port Wakefield Road behind the truck.
AI believe I had enough time to assess there was nothing behind the truck, or nothing in my vision behind the truck, and I’m assuming that there was no other vehicle passing. In fact we are on an intersection with a continuous white line, and my belief has always been you are not allowed to pass on that. That’s why vehicles don’t do that.
QI’m not sure if you answered my question, but the question was at the point of time that you decided to move off, could you see any part of the Old Port Wakefield Road behind Pangallo’s truck.
AYes, you would be able to see a certain distance behind. You may not be able to see right behind the truck, but you would certainly see down the road.
QDo you recall now observing any part of the Old Port Wakefield Road behind Pangallo’s truck when you began to move off.
AI can’t recall, but what I can say is it’s probably normal practice for me to check the whole road.
[7] Transcript at 80.
In my view even on the appellant’s evidence alone the Magistrate would have been justified in finding the charge proved beyond reasonable doubt. Given the appellant’s vantage point and the time he said he waited at the intersection looking at the roadway with the approaching truck and four-wheel drive in view, the motorcyclist should at some point during that wait have been visible to a reasonably prudent driver.
Nevertheless the Magistrate had the evidence of Mr Pangallo. He accepted that Mr Pangallo’s evidence was accurate. That evidence satisfied the Magistrate beyond reasonable doubt that the motorcycle was between the truck and the four‑wheel drive immediately prior to the collision. It was there to be seen by any reasonably prudent driver in the position of the appellant.
A further complaint was made that insufficient weight was accorded to the statement of Ms Jenkin that Mr Wiseman made a comment to her as he lay injured on the ground after the collision to the effect that “I pulled out to overtake a car in front of me and didn’t see the truck until it was too late”.
Ms Jenkin came upon the scene after the collision and went to assist the badly injured Mr Wiseman. The Magistrate acknowledged that at the time when the statement was made Mr Wiseman was severely injured and the statement needed to be assessed in that light. He then commented that it was difficult if not impossible to know exactly what interpretation should be given to the statement anyway. Nevertheless the Magistrate did not disregard the possibility that what Mr Wiseman said was accurate. He concluded that even if Mr Wiseman had been endeavouring to overtake the four-wheel drive then that scenario would not be particularly helpful to the appellant because if that was the case then the motorcycle must, at least for a time, have been between the four-wheel drive and Mr Pangallo’s truck before the collision. Once again on that scenario the motorcycle was there to be seen by any reasonably prudent driver in the position of the appellant. Therefore irrespective of the weight which he was prepared to attach to the statement the Magistrate considered the liability of the appellant on the assumption which was most favourable to the appellant, namely that at the time of the collision Mr Wiseman was trying to overtake the four-wheel drive on the incorrect side of the road for the direction in which he was travelling.
In my view the evidence before the Magistrate established beyond reasonable doubt that the appellant failed to keep a proper and adequate lookout. His driving therefore fell short of the standard to be expected of a reasonably prudent driver. Having reviewed the evidence for myself I consider that the appellant’s conviction was not only justified but inevitable on the basis of the evidence before the Magistrate.
For these reasons I dismiss the appeal.