Gutjahr v Illich
[2000] WASCA 180
•17 JULY 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: GUTJAHR -v- ILLICH [2000] WASCA 180
CORAM: MILLER J
HEARD: 12 JULY 2000
DELIVERED : 17 JULY 2000
FILE NO/S: SJA 1015 of 2000
BETWEEN: MATTHIAS GUTJAHR
Appellant
AND
PAUL STEPHEN ILLICH
Respondent
Catchwords:
Criminal law - Road traffic offence - Requirement to give warning of intention to turn - Road Traffic Code 1974, r 803 - Turns on own facts
Legislation:
Road Traffic Code 1974, r 803
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: In person
Respondent: Ms M J Garnett
Solicitors:
Appellant: In person
Respondent: State Crown Solicitor
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Attorney-General v Lockwood [1842] 152 ER 378
Bond Corporation Holdings Ltd v Bell Resources Finance Pty Ltd [1990] 8 ACLC 474
Coulton v Holcombe (1986) 162 CLR 1
Williams v R (1978) 140 CLR 591
MILLER J: The appellant was charged in petty sessions that on 25 January 1999 at Midland he drove a vehicle on Helena Street and turned left without giving warning of his intention by a signal continuously for 30 metres immediately before making the turn, contrary to the provisions of r 803(2)(a)(i) and r 803(3) of the Road Traffic Code 1975. The matter came before Mr K Moore SM in the Court of Petty Sessions at Midland on 21 December 1999 at which time the appellant pleaded not guilty and contended that in the circumstances of the case he was not required to give any indication of intention to turn within the meaning of the regulation.
The facts of the case were outlined in evidence by Constable D J Anderson who testified that at about 2.15pm on 25 January 1999 he was in company with another officer in a marked police vehicle in a stationary position on Railway Parade, Midland near Helena Street. He was then facing in a westerly direction and observed to his right a south‑bound Ford Falcon station wagon which slowed down, but without indicating any intention to turn, executed a left turn into Railway Parade. According to the officer, he did not know which way the vehicle was going as it approached Railway Parade and was "unclear of the driver's intentions". Constable Anderson stopped the driver of the station wagon and asked why he had not indicated when turning from Helena Street into Railway Parade. The appellant responded by stating that he "thought it was the same street" and was therefore of the view that he was not required to indicate before making the turn.
An extract from a road directory was tendered in evidence which revealed that Helena Street runs in a north‑south direction and at the southern end of it, turns to the east into Railway Parade which runs in a west‑east direction. A photograph of the area was tendered in evidence, it being a composite of three photographs and giving a panoramic view of Helena Street to the north from the exit point of Railway Parade where it meets Helena Street. From this photograph and from another photograph of a panoramic nature which I received in evidence on the hearing of the appeal, it is apparent that the driver of the vehicle travelling south in Helena Street has only one road into which to enter to leave the area. That is Railway Parade. However, there are a number of other options for vehicles travelling south in Helena Street. They could turn into the bus station, which is more or less opposite the exit point of Railway Parade, or could proceed past the entry/exit of Railway Parade toward the railway line where there is a large expanse of bitumen, although entry is prohibited to any of the areas which are immediately adjacent to the railway line itself. The extract from the road directory is misleading in the sense that it shows an almost continuous outer kerb line from Helena Street into Railway Parade. In fact, there is no such kerb line on the western side of Helena Street, but only a wide expanse of bitumen with different entries and exits to the bus station.
The learned Magistrate, who was sitting in the Midland Court of Petty Sessions, took the opportunity to visit the scene and familiarise himself with the area before concluding the case. No evidence was called by the appellant who argued that in the circumstances he had no obligation to indicate an intention to turn into Railway Parade because Helena Street‑Railway Parade constituted a "continuous carriageway". The learned Magistrate reviewed the evidence and made reference to his visit to the scene and then concluded as follows:
"Helena Street runs to an area where there are three outlets; two on the right and one on the left, just after or maybe almost directly in front of Railway Parade. The one to the left is quite some distance up, some metres up, and there's a no entry sign there. And the two to the right, one's almost opposite and the other a little bit further along, both no entry signs. But there is an area where a turn can be made beyond Railway Parade.
Now the constable in saying he didn't know what the defendant was going to do would be correct in that and say: 'I don't know what the defendant was going to do; he might have been going straight ahead or he might have been turning left but he didn't give any indication.' And it seems to me that, strictly, the defendant should have given an indication that he was going to turn left. As the officer said, he didn't know what he was going to do. If the officer had come out in front of the defendant, who had been going straight on, he may be in an authorised vehicle; the officer wouldn't know that. He'd be straight into the defendant, or the defendant would be straight into him and there would have been a collision.
So I have a certain amount of sympathy with Mr Gutjahr but my sympathy's not much help if he's doing what is incorrect. He should have signalled and because he should have signalled there, in spite of the fact that there's nowhere to go except into no entry areas, there's a broad area which could have been used to do a U‑turn and that could have been the position. And I have no alternative but to find Mr Gutjahr guilty."
The appellant was given leave to appeal from the decision of the learned Magistrate, the grounds of appeal contending that the learned Magistrate erred in law in the following respects:
(a)in finding that a motorist proceeding on a continuous carriageway containing a bend was obliged to signal his intention to follow the said carriageway around such bend in the manner specified by r 803 of the regulations;
(b)in concluding that the progression of the appellant's vehicle on the continuous carriageway containing a bend was a turn requiring indication pursuant to the regulation;
(c)in concluding that the appellant may have been driving an authorised vehicle and had been entitled to enter areas marked "no entry";
(d)in finding that the appellant should have signalled, in spite of the fact that there was nowhere to go because there was "a broad area which could have been used to do a U‑turn and that could have been the position".
The latter two conclusions were contended to be "irrelevant, speculative and failing to disclose any basis in law for the appellant's conviction."
At the hearing of the appeal the central issue was whether the appellant, in travelling south on Helena Street and turning into Railway Parade, was on a continuous carriageway which did not require use of his indicator or whether the turn was truly one from one carriageway to another which necessitated some indication of intention to turn. The provisions of r 803 make no reference to the words "continuous carriageway" but require a driver turning right or left to give warning of his intentions by a signal as prescribed by the regulation. In a situation where a driver is turning left and is required to give that signal it must be given if his vehicle has been travelling continuously for 30 metres immediately before making the turn. There is no question that the appellant here had travelled more than 30 metres before turning into Railway Parade.
It is of course obvious that a motorist travelling on a continuous carriageway, who has nowhere else to go but to turn left or right, is not required to give an indication of intention so to do. This case really boils down to a question of fact: was the appellant on a continuous carriageway that left him no option but to turn into Railway Parade or did he have other options open to him? The learned Magistrate found that there were other options. The photographs which had been tendered in evidence certainly showed that those options existed: there could have been a turn into the bus station (although that turn would have been made some distance back from Railway Parade) or the appellant could have proceeded straight on to the area which immediately abounds the railway line. True it is that he would then have been precluded from turning into either the areas to both the west and east, but there was a wide apron of bitumen where he could have driven his vehicle and then decided what to do. The fact of the matter was that a motorist in Railway Parade was not to know that the appellant was turning into Railway Parade if he failed to indicate an intention so to do. For whatever reason, he could have been proceeding straight ahead past the entry/exit to Railway Parade. This being so, it seems to me that it was open to the learned Magistrate to conclude as he did that the appellant was required to give an indication by reason of the provisions of the relevant regulation. The conclusions that the learned Magistrate made as to the possibilities that lay open to a motorist as he reached the southernmost extremity of Helena Street were, in my view, open. That is, despite the fact that there was nowhere to go except "no entry" areas, the appellant could have proceeded past the entry/exit point of Railway Parade into the broad bitumised area where he may have turned, stopped or otherwise have considered his position. This, in my view, made it incumbent upon him to indicate in accordance with the provisions of r 803 if he intended to turn into Railway Parade. For these reasons I dismissed the appellant's appeal.
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