Hamilton v Parish - [2011] WASC 213

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…

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.

Continue reading Hamilton v Parish

Details

AGLC: Hamilton v Parish [2011] WASC 213
Case: [2011] WASC 213
Decision Date: 24 AUGUST 2011

CaseChat Overview and Summary

In the matter of Hamilton v Parish, the respondent, Parish, brought an action against the appellant, Hamilton, alleging that Hamilton had driven dangerously, resulting in an accident that caused Parish personal injury. The case was heard in the Supreme Court of Queensland. Parish contended that Hamilton's preoccupation with checking his rear-view mirror while driving amounted to dangerous driving. Hamilton argued that his conduct did not constitute dangerous driving as it did not create an unnecessary risk of death or serious injury to a person. The primary issue before the court was whether a driver's preoccupation with checking the rear-view mirror could be considered dangerous driving under the Road Traffic Act 1974 (Qld). The court considered whether Hamilton's actions created a risk of death or serious injury to another road user.

The court found that dangerous driving could include activities that distract a driver from the immediate task of driving safely. The court held that the driver's preoccupation with checking the rear-view mirror, while driving, could amount to dangerous driving if it created an unnecessary risk of death or serious injury to a person. The court found that Hamilton's actions did create such a risk, and therefore, his conduct amounted to dangerous driving. The court emphasised that the key factor was whether the driver's actions created an unnecessary risk of death or serious injury, and in this case, the court found that Hamilton's conduct did create such a risk.

Consequently, the court dismissed Hamilton's appeal and upheld the decision of the lower court that Hamilton was guilty of dangerous driving. The court found that Hamilton's actions did create an unnecessary risk of death or serious injury, and therefore, his conduct amounted to dangerous driving. The court's decision reinforces the importance of maintaining focus on the task of driving safely and avoiding any distractions that could create an unnecessary risk of death or serious injury. The court's decision in this case provides guidance to drivers on the importance of avoiding distractions while driving, and the potential consequences of failing to do so.

Orders