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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: DUNN v Police [2011] SASC 181
Case: [2011] SASC 181
Decision Date: 19 October 2011

CaseChat Overview and Summary

Dunn appealed against his conviction for aggravated driving without due care and attention, contrary to section 45(3) of the Road Traffic Act 1961 (SA), arguing that the Magistrate's decision was unsafe and unsatisfactory. The appeal focused on whether the Magistrate appropriately assessed all the evidence and whether he gave due consideration to alternative scenarios consistent with the appellant’s innocence. The appeal was dismissed by the Supreme Court of South Australia.

The legal issues before the court included whether the Magistrate correctly applied the law in determining the appellant's guilt and whether he appropriately assessed the weight of the evidence. Specifically, the court had to determine if the Magistrate gave adequate weight to the appellant’s evidence and other reasonable hypotheses consistent with innocence, and whether the Magistrate's findings were justified based on the totality of the evidence.

The Supreme Court found that the Magistrate had correctly assessed all the evidence and gave due weight and consideration to the alternative scenarios presented by the appellant. The court held that the Magistrate's findings were justified based on the evidence presented at trial. The court concluded that there was no basis for the appellate court to interfere with the Magistrate’s decision, as the findings were consistent with the standard of a prudent driver as required by the law.

The final orders of the court were that the appeal be dismissed, and the conviction and sentence imposed by the Magistrate were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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