Hamilton v Parish
[2011] WASC 213
•24 AUGUST 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HAMILTON -v- PARISH [2011] WASC 213
CORAM: McKECHNIE J
HEARD: 12 AUGUST 2011
DELIVERED : 24 AUGUST 2011
FILE NO/S: SJA 1035 of 2011
BETWEEN: ANGUS CRAIG HAMILTON
Appellant
AND
LEON JOHN PARISH
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE PONTIFEX
File No :MR 351 of 2010
Catchwords:
Road traffic - Dangerous driving - Whether preoccupation in rear view mirror can amount to dangerous driving
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr R V Lonnie
Respondent: Mr D E Leigh
Solicitors:
Appellant: Ross V Lonnie
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
McPherson v Lucas [2008] WASCA 56; (2008) 181 A Crim R 587
McKECHNIE J:
What happened
On a wet and wintery day in June last year, Mr and Mrs Wilson set off to visit the Cheese Factory in Cowaramup. Mr Hamilton was driving a blue Ford ute right behind them. As Mr Wilson indicated and slowed to turn, Mr Hamilton was briefly distracted because he was concerned about the movement of a fast approaching Volkswagen behind him. When he looked back to the front he was too close to Mr Wilson's car to avoid it. Faced with the decision which way to go, he decided to swerve to the right and accelerate across the opposite lane. This proved to be unfortunate for Mrs Newland who was travelling with her young son in the opposite direction. Mr Hamilton's ute fishtailed across the road, hit the gravel, went back onto the road and collided with Mrs Newland's car. The accident broke her son's jaw.
Mr Hamilton was interviewed and subsequently charged with dangerous driving causing bodily harm. Following a trial he was convicted.
What this appeal is about
1.The Learned Magistrate was wrong in law and in fact in finding that on the evidence before the court the elements of the charge of dangerous driving causing bodily harm were made out.
2.Further the finding of guilt was against the weight of the evidence in particular the finding that 'this preoccupation (by the Appellant) with what was happening behind him' amounted to dangerous driving.
The grounds are not overburdened with particulars but the essential issue is whether the magistrate's finding of preoccupation was open on the evidence. This, of course, involves a consideration of all the circumstances over a short distance and a short time.
With one exception, Mr Lonnie accepted the magistrate's findings of fact. Therefore, I can reach my decision on the uncontested facts:
a)At or about 12.30pm on the 8 June 2010 Mr Hamilton was driving a blue Ford ute in the south bound lane of Bussell Highway Cowaramup heading towards Margaret River. He was not exceeding the speed limit and was not affected by alcohol. He was very familiar with this part of the Bussell Highway. There were no mechanical defects in the ute or other vehicles examined which contributed to the incident.
b)The Bussell Highway at this point is straight and sealed with a slight incline to the North and South. It has a single carriage way in either direction with gravel shoulders and passes through farming land on either side. The posted speed limit in the area was 110km/hr.
c)There were moderate showers at the time requiring use of wipers and there had recently been heavy rain. The road surface was very wet.
d)Mr Hamilton was driving in a queue of traffic. He was behind a Holden Commodore driven by Mr John Wilson and in front of a white Volkswagen being driven by Mr Jukka Rinta which was in turn in front of another Commodore being driven by Mr Pieter Groissen.
e)Mr Hamilton was travelling at approximately l00kms/hr and the car in front was travelling at approximately 100-105kms/hr.
f)At the same time a Subaru sedan driven by Ms Newlands was travelling in the opposite direction in the north bound lane of the Bussell Highway.
g)The Commodore in front of Mr Hamilton started to slow down as it approached the entry to the Cheese Factory and this was noted by Mr Hamilton who put his foot on his brake.
h)Mr Hamilton also saw. the Subaru about 800m away and coming towards him from the South.
i)Shortly before the entry to the Cheese Factory Mr Hamilton was looking in his rear view mirror and became preoccupied with the movements of a Volkswagen overtaking the vehicles behind him. Mr Hamilton was concerned as to the manner of driving of the Volkswagen.
j)While he was looking in the rear view mirror at the Volkswagen the Commodore in front of him applied its brakes, started to indicate and slowed down further.
k)Mr Hamilton did not initially notice the Commodore applying its brakes and indicating because he was preoccupied with the movements of the Volkswagen behind. Had he not been looking in the Volkswagen in the rear mirror Mr Hamilton would have noted what the Commodore in front was doing earlier and he could have braked earlier.
1)Mr Hamilton did subsequently brake to avoid driving into the back of the Commodore in front but by this time his vehicle was doing between 80‑85km/hr and he was less than 6-8m behind the Commodore.
m)As Mr Hamilton applied the brakes of his car it began to slide to the left. There was a car park to the left in which a family was standing and Mr Hamilton thought that if he continued left he could possibly hit them.
n)Mr Hamilton then made a decision to take his foot off the brake, swerve his car to the right and accelerate across the opposite lane. He was aiming his car at a gap in the trees and the paddock on the other side of the road.
o)The Subaru was approximately l00-150m away in the opposite lane when he decided to cross across that opposite lane.
p)As he accelerated and pulled the ute to the right it started to aqua-plane and fish tail on the wet surface of the opposite lane of the road. The rear of the ute also came into contact with the gravel shoulder on the opposite side of the road which caused the ute to slide and spin.
q)Mr Hamilton was unable to regain control of the ute's movements and it subsequently collided head on with the Subaru driven by Ms Newland.
r)Ms Newland's young son Samuel suffered a broken jaw in the incident in which the vehicle driven by Mr Hamilton was involved.
s)The driver of the Commodore that had been travelling in front of Mr Hamilton's vehicle stopped his vehicle when he saw the blue ute going past him and overtaking him. Ms Newland's vehicle subsequently collided with that Commodore.
t)The drivers of both the Volkswagen and the second Commodore travelling behind Mr Hamilton were able to brake in sufficient time to avoid a collision with other vehicles [24].
The only challenge is the finding, more accurately expressed as a conclusion, in par 24(i) and par 24(k) that Mr Hamilton was preoccupied.
Mr Lonnie also advanced an argument that the magistrate failed to give consideration, or any adequate consideration, that Mr Hamilton showed true absence of fault on his part in that he reacted to a sudden or extraordinary emergency. Mr Lonnie conceded before me that he may not have put it as forcefully as he should have in drawing it to the magistrate's attention. My reading of the transcript does not give any indication that the question of emergency or the provisions of s 25 of the Criminal Code (WA) were ever expressly or impliedly raised before the magistrate as matters in issue. That, of course, is not an entire end of the matter because if there were elements of s 25, then it is the duty of the prosecution to disprove them, whether or not they were clearly raised. However, it is unfair on the magistrate to refer to this as an error of law when she was never asked to consider it. It may, however, be a miscarriage of justice.
But it is not in this case. On the findings of the magistrate, the need for urgent action was caused by Mr Hamilton's preoccupation. If that finding is wrong, the conviction should be quashed. But if it was open for the magistrate to make that finding then emergency does not arise. A person cannot claim the benefit of a sudden or extraordinary emergency if they have directly brought about the circumstances which gave rise to the suddenness. The need to keep track of vehicles ahead of a fast moving car means that concentration on what is happening behind the car cannot convert a response when focus is back to the front to 'extraordinary'.
Was it open for the magistrate to find that Mr Hamilton was preoccupied?
Mr Hamilton made a record of interview in which he was content to let stand as his evidence‑in‑chief. He was asked:
Let's put it this way, but for your preoccupation with the Volkswagen behind you, could you have braked behind the car in front of you without causing an accident?---Yes, I could (ts 37).
He then discussed the reasons why he chose to accelerate over to the other side of the road.
In cross‑examination he denied that he was concentrating on the Volkswagen:
It wasn't constantly. No, I was still keeping my eyes on the road (ts 40).
He said he was very concerned about the Volkswagen because it was coming up at great speed and close to the rear of his vehicle.
He agreed (ts 44) he was too close to the Commodore and hit the brakes because it was too close to avoid a collision because his attention was removed from the vehicle in front to the rear view mirror.
He agreed he lost focus on the car in front:
So by you not concentrating on the car in front, averting your eyes from the car in front, you have contributed greatly to the crash, haven't you?---Yeah, because it was taken my attention (ts 45).
The magistrate's finding of preoccupation was open on the evidence. Indeed, notwithstanding Mr Hamilton's evidence at ts 40 was an almost inevitable finding.
Mr Lonnie does not challenge the magistrate's analysis of the authorities. Indeed, the law about dangerous driving is now settled and was recently reviewed in McPherson v Lucas [2008] WASCA 56; (2008) 181 A Crim R 587.
The magistrate found that although Mr Hamilton was subjectively concerned about the movements of the Volkswagen behind him, his evidence about the driving of the Volkswagen and its distance behind Mr Hamilton's utility was not accurate. She found:
I have also found based on the accused's evidence, that had he not been looking in the rear mirror focussing his attention on what was behind, Mr Hamilton would have noted what the Commodore in front was doing earlier, allowing him to brake earlier. However having driven in such a way that he then needed to take evasive action to avoid a collision, the evasive action which he took was of itself also objectively dangerous. Having decided he could not go left, Mr Hamilton took his foot off the brake, pulled his car hard to the right and accelerated across the opposite lane aiming to get to the other side of the road. He did so knowing that there was an oncoming vehicle only 100-150m away, and that the road was very wet. He ought to have known that the oncoming vehicle could be travelling at or near the posted speed limit of 110km/hr. By accelerating and pulling suddenly to the right on a wet road surface, he lost control of his vehicle and it collided with Ms Newlands' car. His manner of driving may well have been viewed differently if there had not been oncoming traffic or if the road had been dry but again, in the driving conditions that prevailed at the time it was dangerous to the public [31].
This finding was open on the evidence. Mr Hamilton was preoccupied by the Volkswagen and therefore not paying sufficient attention to the traffic ahead of him in conditions where all vehicles were travelling at speed on a wet road. Momentary inattention can constitute dangerous driving.
I also consider that the magistrate's finding at [31] was open.
An observer looking from above, seeing the passage of Mr Hamilton's ute across the road in close proximity to an oncoming car, would have little difficulty in concluding that it was an objectively dangerous manoeuvre. He made a deliberate decision to accelerate to the other side of the road because he was suddenly confronted with a slowing vehicle in circumstances where he had lost concentration. This was an emergency of his own making. There is no fact personal to Mr Hamilton that suggests any exculpation from the objective characterisation of the driving as dangerous.
Mr Lonnie said all witnesses other than Mrs Newland, were guilty of contributory negligence.
Contributory negligence is not a concept which sits with dangerous driving. In some cases the driving or behaviour of other persons on the road is such that a person's driving, even if dangerous, is not the cause of the harm that follows. This may be the point Mr Lonnie was making. This is not such a case. Having regard to the unchallenged finding of the magistrate, there is nothing in the driving of Mr Wilson in the car in front, or Mr Rinta the Volkswagen driver, or anyone else, that would raise a reasonable doubt to displace the finding of causation. There is no suggestion that Mr Wilson braked suddenly. He was slowing down towards the entrance of the Cheese Factory and Mr Hamilton was aware of this. Mr Rinta's speed and manner of driving, as attributed by Mr Hamilton, was not a view of the driving accepted by the magistrate. The evidence entitled her to make the unchallenged findings I have set out.
Conclusion
The appeal is dismissed.
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