Fairhead v Macauley - [2010] WASC 187

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FAIRHEAD -v- MACAULEY [2010] WASC 187

CORAM: MURRAY J

HEARD: 9 JUNE 2010

DELIVERED : 26 JULY 2010

FILE NO/S: SJA 1131 of 2009

BETWEEN: WILLIAM LARRY FAIRHEAD
Appellant
AND
BRIAN JOHN MACAULEY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE V C EDWARDS
File No  :BS 300 of 2008

Catchwords:

Criminal law and procedure - Reckless driving - Whether duress proved to be unavailable

Legislation:

Nil

Result:

Application for leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: Ms R M Parks
Respondent: Ms L White

Solicitors:

Appellant: Mr E J Myers
Respondent: State Solicitor for Western Australia

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

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Quartermaine v Western Australia [2008] WASCA 22; (2008) 36 WAR 384

MURRAY J:

The proceedings

The appellant was charged with an offence of reckless driving, ie wilfully driving his motor vehicle on Fairway Drive, West Busselton on 10 February 2008 in a manner that was dangerous to the public or to any person.
The charge came to trial in the Magistrates Court at Busselton on 5 August 2009. On 21 October 2009, for reasons which she then published, her Honour the magistrate convicted the appellant, fined him $600 and disqualified him from holding a motor driver's licence for a period of 6 months.
The appellant appeals against his conviction. Having done so, the obligation to pay the fine is suspended and the period of the disqualification does not run during the currency of the appeal until its final determination: Criminal Appeals Act 2004 (WA) s 11. As to the appeal, this court has ordered that the application for leave to appeal is to be heard at the same time as the appeal.
The appeal proceeds on one ground as follows:
On the evidence, the learned Magistrate's conclusion that the Appellant was driving recklessly was not reasonably open:
Particulars:
(a)the Appellant was reacting to a threatened violent confrontation by the occupants of another vehicle. He could not have been expected to have acted in a cool and rational manner;
(b)the Appellant's decision not to turn left into Fairway Drive was a momentary decision while he was in a state of panic after he had been threatened by the occupants of the other vehicle
(c)it was equally open on the evidence, that the Appellant's car was being blocked by the car in front as the Appellant tried to escape from the threatened confrontation.

The law

The appeal to this court, although by leave, is by way of rehearing: Criminal Appeals Act, s 39.
That being the case, the court is obliged to properly review the evidence given at trial and the reasons of her Honour. It has long been held, however, that the appellate court must not overlook that it has not had the advantage of seeing and hearing the witnesses give their evidence. In a case such as this, which, as will be seen, crucially depends upon her Honour's view of the credibility of the various witnesses, this court must be careful not to overturn the magistrate's decision unless it can be seen to involve error because it is contrary to compelling inferences from the evidence or it is glaringly improbable, in a case where there is no error in the reasoning of the trial court. And where it is open to the trial court to reach the conclusion to which it has come, the appellate court is not required to interfere and should not reverse the court below: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.
As the ground of appeal makes plain, the appellant's challenge to the decision of the magistrate that her Honour was satisfied beyond reasonable doubt that the appellant was guilty of reckless driving, is not a challenge to the proposition of which her Honour was satisfied, that the appellant's manner of driving the vehicle was dangerous within the meaning of the Road Traffic Act1974 (WA) and the appeal involves no challenge to the proposition of which her Honour was also satisfied, that the appellant wilfully drove his car in that way. Indeed, her Honour found that on all the evidence, including that given by the appellant, his manner of driving was the result of his deliberate choice, for reasons which he gave in evidence.
At trial, and, according to the ground of appeal, before me, this case turned on the proposition that the respondent had failed to disprove beyond reasonable doubt, that the appellant was not criminally responsible for his reckless driving, because his manner of driving arose out of duress.
That is a reference to the provisions of s 31 of the Criminal Code (WA) and it is necessary to recall that this offence was allegedly committed on 10 February 2008. The law as to duress was then differently expressed in s 31 of the Code than is the case now in s 32, a re-enactment with effect from 1 August 2008.
As s 31 was framed as at 10 February 2008, it relevantly provided:
A person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances, that is to say -
(3)When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence;
The magistrate referred herself to the leading authority on that section: Quartermaine v Western Australia [2008] WASCA 22; (2008) 36 WAR 384. As the reasons of Beech J make clear (Pullin and Miller JJA agreeing), the test of the application of s 31(3) is the reasonable necessity of the act done by the accused in order to resist actual and unlawful violence threatened to the accused or to another person in his presence. What is reasonable in that context, is to be determined objectively, but having regard to the circumstances as they affected the accused at the time when he or she did the act alleged to constitute the commission of the offence, because it is that act for which the accused is sought to be made criminally responsible.
Having regard to the charge in this case therefore, the question was whether the reckless driving by the appellant in Fairway Drive (not on any other road) when that driving occurred was reasonably necessary in order to resist actual and unlawful violence which was then, at the time of the alleged commission of the offence, threatened to the appellant or to another in his presence. Her Honour gave consideration to the question whether the prosecution had disproved the application of s 31(3) to the case, appreciating that in the circumstances of the case, the question was to be reformulated in those terms.

The evidence and findings of fact

There was a history behind the occurrence of the events which gave rise to the charge of reckless driving. The appellant has a farm at Quindanning, not far from the house in which they live in Lilly Crescent, West Busselton. On the day in question, the appellant and his partner were working at the farm when they received a telephone call from one of the sons of the appellant's partner. He was at the house in Busselton. He said that a group of Aboriginal people were attacking the house and damaging it. These people were thought to be members of a family with which the appellant's family had been feuding in the past.
They decided to return to Busselton and drove there in the appellant's blue/green Ford sedan. In the car were the appellant, his partner, their daughter and granddaughter. They drove past their house in Lilly Crescent and could see that a sliding door and windows had been broken. They continued on to drop their daughter and granddaughter off at a relative's house. The appellant and his partner then drove back to Lilly Crescent with the intention of returning to their home to investigate what had occurred.
As they drove along Bignell Drive and prepared to turn left at a t‑junction into Lilly crescent, a white Hyundai, which they recognised, drove at them as it came out of Lilly Crescent and blocked their entry into that street. They recognised the white car as being associated with members of the opposing family with which their family had been feuding. Members of the opposing family, her Honour accepted on the evidence of the appellant and his partner, had been involved in drive‑by shootings directed against the appellant and his family.
Her Honour accepted that as the appellant drove his vehicle down Bignell Drive, he was blocked a number of times from leaving that road to make a getaway down another street. Her Honour accepted that it appeared that a 'Molotov cocktail' had been thrown from the white car towards their car. An empty bottle smelling strongly of petrol with a cloth wick was later found on Bignell Drive by investigating police officers.
The incident ended when the two vehicles ended up in a ditch and the white car burst into flames. The source of the fire was behind the driver's seat. There was no apparent explanation as to why the fire started there. Witnesses who drove past, said the white car smelled strongly of petrol.
The appellant's partner gave evidence that as the vehicles drove down Bignell Drive, she saw a passenger in the white car point a gun at their vehicle. She became hysterical. She was telling the appellant that she feared that they would be shot. The appellant's evidence was that he was panicking. He did not know how to escape. As the vehicles drove down Bignell Drive, his evidence was that the white car side‑swiped them about four times. There was certainly evidence of extensive damage to the sides of both vehicles when they were subsequently examined.
Bignell Drive ends at a street called Fairway Drive. The two vehicles apparently approached the t‑junction intersection on the wrong side of Bignell Drive and turned right into Fairway Drive. There was evidence that the right front of the appellant's car made substantial contact with the rear of the white car. Both cars ended up in the ditch where the white car burst into flames.
There were witnesses to how that came about. Their evidence was substantially accepted by the magistrate, although one of them, a Mr Sinclair, was found by her Honour to be 'somewhat unreliable' because he had obviously confused the directions of travel in Fairway Drive.
The two vehicles had been driving east in Bignell Drive. They turned right into Fairway Drive and were then proceeding south in that street. Mr Sinclair it seems, was driving in a northerly direction in Fairway Drive, so the two vehicles were coming towards him. One of them was on the wrong side of the road in his lane. His impression was that the blue car pushed the white car off the road into the ditch.
He saw two men get out of the white car and commence to yell and scream at the blue car. The blue car then got out of the ditch and positioned themselves to drive off. One of the men from the white car tried to get into Sinclair's car. He said that the occupants of the blue car got out of their vehicle and were yelling obscenities at the other two men. He drove off and called the police.
Neither of the occupants of the white car gave evidence, but the other independent witnesses were a Mr and Mrs Quirk. They had been driving in Bignell Drive in the same direction as the appellant's vehicle and the white car, but apparently ahead of them. They stopped at the intersection of Bignell Drive and were preparing to turn right into Fairway Drive. As they waited to do so, they gave evidence that the two vehicles came from behind them on the wrong side of Bignell Drive and turned right into Fairway Drive. They watched the two cars drive away from them to their right.
Their evidence was that they saw the blue car hit the back of the white car which was travelling in front of it. They proceeded erratically down the road and there was another such contact. Neither Mr nor Mrs Quirk could recall seeing any brake lights from either vehicle. After the second impact, the vehicles swerved into the ditch. The Quirks turned right and drove into Fairway Drive, pausing near where the vehicles had come to rest. One of the occupants of the white car tried to get into their car.
The appellant's partner was unable to give evidence about the events immediately leading up to the final crash. It seems that she was in such fear that she had ducked down and was not looking out of the windows, but she had the impression that the white car in front of them had braked heavily before the vehicles left the road.
The appellant's evidence was that he was in fear that he and his partner would be killed. The white car in front of him was braking from time to time to try to slow them down. He did not stop because he thought that if he did so, the occupants of the other vehicle would get out and attack them. As they drove down Fairway Drive, the appellant said that he tried to overtake the white car, but it seemed to be pulling out in front of him to stop him doing so. He then ran into the back of the other car (not deliberately) and the two vehicles left the road into the ditch. The appellant's evidence was that when entering Fairway Drive, he could not turn left because there was another vehicle preparing to turn into Bignell Drive.
The appellant did not give that evidence in chief. He mentioned it first when he was asked under cross‑examination why he did not allow the white car to turn right out of Bignell Drive into Fairway Drive and why he did not turn left out of Bignell Drive into Fairway Drive and thus go in the opposite direction from that taken by the white car.
At the t‑junction formed by Fairway Drive across the end of Bignell Drive, there is a median strip in the centre of Bignell Drive. It was established that the Quirk's vehicle was stationary on the correct side of the road preparing to drive out of Bignell Drive into Fairway Drive. That meant that the white car and the appellant's vehicle could not get into Fairway Drive if they stayed on their correct side of Bignell Drive.
With the white car leading and the appellant following, those two vehicles went across onto the wrong side of Bignell Drive and from there turned right into Fairway Drive. The appellant gave evidence that although the white car had been braking and trying to cause the appellant to stop, he was desperate not to do so because he was convinced that if he did, the occupants of the white car would attack him and his partner.
When it was put to the appellant in cross‑examination, he said he could not turn left into Fairway Drive, 'because there was a vehicle coming into Bignell Drive.' He added that, 'there was a vehicle coming left into Bignell Drive.' (ts 112) Although counsel re-examined the appellant, she did not touch upon this evidence when she did so.
The evidence is rather unclear. Presumably the vehicle was not that driven by Mr Sinclair, because the evidence he gave showed that he was much further back, as he saw the headlights of the white car and the appellant's vehicle coming towards him in Fairway Drive before, after apparently coming into contact, the two vehicles left the road and ended up in the ditch.
It would have been difficult for the vehicle to which the appellant referred, if it was where he said it was, and if he was not mistaken about that, to have turned left out of Fairway Drive into Bignell Drive, until the white car and the appellant's vehicle got out of Bignell Drive into Fairway Drive, so as to clear that part of the intersection.

The magistrate's decision

However, that may be, her Honour dealt with this evidence as follows:
Whether or not Mr Fairhead was chasing the occupants of the white car on Fairway Drive and ramming the car, is an important question. I do consider that Mr Fairhead had a choice at the Bignell Drive/Fairway Drive intersection to turn to the left rather than to right. By turning left, he would have had a much better chance of escaping from the white car. His explanation for not turning left does not stack up. There is no other evidence that there was a vehicle coming down Fairway and even if there were it would have made no difference whether Mr Fairhead turned right or left [33].
With respect, it seems to me that that conclusion is compelling. The appellant's evidence was that he was in fear for his life as a result of the conduct of the occupants of the white car side‑swiping his vehicle in Bignell Drive, apparently pointing a gun at them and throwing one or more Molotov cocktails at their vehicle. He did not want to stop in case that should give them the opportunity to leave their vehicle and attack him and his partner. He simply wanted to get away from the area. If he was not the aggressor when he followed the other vehicle into Fairway Drive, he had an ideal opportunity to escape by turning left rather than following the other vehicle to the right.
The magistrate went on to find that the appellant drove recklessly in Fairway Drive because he drove much too close to the vehicle in front and deliberately drove into that vehicle on at least two occasions [36]. Those findings were well open, and as I have said, there is no complaint that her Honour erred in finding that the appellant drove recklessly.
Her Honour found that the defence provided by s 31(3) of the Code had been disproved beyond reasonable doubt. She held that once the vehicles got into Fairway Drive, the threat of unlawful violence presented by the white car and its occupants, which had been very real when the vehicles were in Bignell Drive, had ceased and indeed, the appellant had become the aggressor. His manner of driving in Fairway Drive was not reasonably necessary or indeed, necessary at all to resist actual and unlawful violence threatened to him.
So far as the particulars of the ground of appeal are concerned, her Honour did not overlook the frightening nature of the encounter and that the appellant and his partner were very fearful that serious harm would be done to them. She did not overlook the fact that the appellant said he was panicking. But it was open to her Honour to find, as she did, that the appellant's explanation for his commission of the offence could not be accepted. The consequence was that, rather than continuing his efforts to escape, the appellant had become the aggressor.
In the result, leave to appeal should be refused, the appeal must be dismissed and the conviction upheld.