Harris v Smith
[2013] WASC 17
HARRIS -v- SMITH [2013] WASC 17
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 17 | |
| Case No: | SJA:1087/2012 | 21 JANUARY 2013 | |
| Coram: | ALLANSON J | 25/01/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DAVID EDWARD HARRIS JOHN DAVID SMITH |
Catchwords: | Criminal law Appeal from magistrate Dangerous driving causing grievous bodily harm Inattention Turns on own facts |
Legislation: | Nil |
Case References: | Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 King v The Queen [2012] HCA 24; (2012) CLR 588 McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44 McPherson v Lucas [2008] WASCA 56 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
JOHN DAVID SMITH
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE F K ZEMPILAS
File No : KA 4037 of 2011
Catchwords:
Criminal law - Appeal from magistrate - Dangerous driving causing grievous bodily harm - Inattention - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms L B Black
Respondent : Ms G M Cleary
Solicitors:
Appellant : Ellery Brookman
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
King v The Queen [2012] HCA 24; (2012) CLR 588
McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44
McPherson v Lucas [2008] WASCA 56
(Page 3)
1 ALLANSON J: On 24 June 2011 David Edward Harris drove his vehicle through the intersection of Broadwood Street and Atbara Street in Kalgoorlie and collided with a motorcycle ridden by Paul David Pearce. Mr Pearce suffered grievous bodily harm as a result of the collision. Mr Harris was charged with dangerous driving causing grievous bodily harm and was convicted. The question at trial was whether Mr Harris caused that harm by driving in a dangerous manner.
2 The evidence before the magistrate was largely undisputed, and there are no findings based on the credibility of witnesses. Mr Pearce had little recollection of the events of that day, and no recollection of the time immediately before the collision. There was no other eye witness to the collision, although the prosecution called a witness who saw Mr Pearce a short time before and noticed nothing unremarkable about the way he was riding. The prosecution also led evidence about the scene, and road conditions, including photographs and a video recording showing the view from the intersection along Broadwood Street. As part of the video, two motorcycles were filmed approaching the intersection in the direction Mr Pearce had travelled.
3 Mr Harris did not give evidence, but a recorded interview with the police was in evidence. He said he did not see the motorcycle until just before the collision. The prosecution did not suggest otherwise. Its case was that Mr Harris should have seen it.
4 The defence suggested that, on the evidence, there were three main factors that could account for Mr Harris failing to see the motorcycle: the shadows on the road; Mr Pearce was wearing dark clothing and the motorcycle was black; and there was a possible obstruction caused by the 'A pole' or pillar at the edge of Mr Harris' windscreen.
The facts
5 Broadwood Street and Atbara Street are both paved. There is a give way sign for vehicles travelling along Atbara Street at the intersection with Broadwood Street.
6 The video, which was taken in the days immediately following the incident, shows the view of the driver stopped at the intersection and looking left along Broadwood Street, the direction from which Mr Pearce came. The road is wide and flat, and the view is free from obstruction. On the video, you can see all the way to the next intersection about 400 m away.
(Page 4)
7 The weather on 24 June 2011 was clear and sunny. There were two or possibly three shadows across the road thrown by trees on the side of the road. The trees are well back from the road surface and do not themselves obstruct the view. The first shadow, at the time they were measured, was about 70 m from the intersection and the second was about 109 m from the intersection. Each shadow was about 20 m wide at the time it was measured. Mr Pearce would have passed through the patches of shadow as he approached Atbara Street.
8 While Mr Harris did not give evidence, his account of what happened was in evidence through the recorded interview he gave to police officers. He said he was familiar with the intersection, although he remembered it as controlled by a stop sign rather than a give way sign. He said that Broadwood Street was a busy road with a lot of traffic.
9 Mr Harris was driving a Toyota Hilux utility. He was familiar with his vehicle, and had been driving it for about two years.
10 Mr Harris said that he stopped at the intersection and looked in both directions, and was required to wait for a vehicle that was approaching from his right. He then looked again. To his left he could see a white utility, but it was some distance away. He drove into the intersection.
11 Mr Harris was not speeding. He was not intoxicated. He was wearing his prescription glasses. He was not using his mobile phone. He did not see the motorcycle until immediately before the collision.
12 Mr Pearce was wearing dark clothing and a predominantly dark helmet. His motorcycle was black. It did, however, have a headlight on, on low beam. The magistrate could not, on the evidence, find at what speed Mr Pearce was travelling but on the evidence found it was likely that he was travelling at around 60 to 70 km an hour. That finding has not been challenged.
13 A photograph in evidence shows the view from the cabin of the Hilux. It shows the A pole at the edge of the windscreen. The photograph does not show whether the A pole would have obstructed Mr Harris' view in his position in the intersection. Mr Harris did not himself suggest that it was a factor when he was interviewed by the police.
(Page 5)
The findings
14 The magistrate said that the central question was whether the manner of Mr Harris' driving when entering the intersection when he did was dangerous to the public or to any person.
15 The magistrate first dealt with the view that Mr Harris would have had when he stopped at the intersection, and the visibility of the approaching motorcycle as it passed along Broadwood Street, including through the areas of shadow. She accepted that it would have been harder to see a rider in dark clothing and on a dark motorcycle as it passed through the shadows. Critically, however, her Honour found that the low beam headlight made the motorcycle more visible when it passed through those areas of darkness. Counsel for Mr Harris suggested there is some ambiguity in that finding, and her Honour may have meant nothing more than that the motorcycle was more visible than it would have been had its headlight not been lit. That may be so. But her Honour said that the two motorcycles which drove towards the camera in the re-enactment were clearly visible from a greater distance because of the headlights. She was satisfied that, had Mr Harris looked as a prudent driver should, 'he ought to have seen the motorcycle move from areas of shadow to areas of light as it progressed down Broadwood Street towards him at the intersection'.
16 The finding is supported by the video evidence. The motorcycles are clearly visible as they move towards the camera in the video, both before they reach the areas of shadow and as they pass through it.
17 The magistrate dealt also with the question of the A pole, although there was in fact no evidence before her that it had obstructed Mr Harris' view. Her Honour found that a prudent driver familiar with his vehicle would also be familiar with any obstructions that it might pose to his vision, and make allowance for them.
18 Taking those matters into account, her Honour concluded that while there may be other occasions where the evidence offers a possible explanation for why a driver did not see another vehicle, on the evidence before her there was no other possible explanation as to why Mr Harris did not see Mr Pearce, other than that he failed to look as a prudent drive should.
19 Her Honour then considered a second submission that, even on that finding, it did not determine that the manner of driving was dangerous or, as her Honour put it, that he was 'driving so inattentively as to constitute dangerous driving [and] to be a danger to the public'. Her Honour
(Page 6)
- accepted that she must apply an objective test and that just because an accident occurred that does not mean the driving is dangerous.
20 The magistrate accepted that there must be some feature beyond simply want of care or even negligence, something 'which subjects the public to a risk over and above that ordinarily associated with driving of a motor vehicle including driving by persons who might drive with less than due care and attention'. She must apply an objective test. Her Honour accepted that failure to comply with the Road Traffic Act is not determinative, and the happening of an accident does not itself prove that driving is dangerous. She said:
In my view, it is expected that competent, prudent driver will see an approaching motorcycle at 1 pm in daylight in an open and flat intersection with straight roads approaching with its headlight illuminated even if that motorcycle does travel through areas of shadow and even if it is dark in colour and the rider is also wearing dark clothing and that is also in circumstances where parts of the driver's vehicle might obstruct parts of his view, or I would expect that competent, prudent driver to make sufficient efforts to see such a vehicle before entering that intersection especially where consequences of not doing so can be so serious. I am of the view that a failure to do so does constitute driving so inattentively as to constitute a danger to the public.
In my view, based on the evidence, the only reasonable inference in this case is that the accused did fail to do so. I am not satisfied that the evidence gives rise to a reasonable possibility that the accused did have a proper lookout as expected of prudent drivers but did not see the motorcycle. I am satisfied beyond reasonable doubt the prosecution have established that the accused drove in a manner that was dangerous to the public or to any person by entering the intersection in the way that he did in the path of an oncoming vehicle and that the only reasonable inference is that he did so without looking adequately for oncoming traffic and that goes, in my view, beyond merely careless or negligent. It caused the situation of actual danger and was objectively dangerous.
The appeal
21 Mr Harris appeals on the single ground that the magistrate erred in law in finding that the only rational inference open on the evidence was that he drove so inattentively as to constitute a danger to the public, in circumstances where it was open to the magistrate to conclude that the prosecution had failed to disprove beyond reasonable doubt the possible inference that the appellant had been driving attentively but had reasonably failed to see the vehicle, in circumstances where her Honour:
(Page 7)
- (a) accepted the evidence of the appellant that he had stopped at the intersection, looked both directions before entering, was not speeding, was not using his phone, was not intoxicated and did not see the motorcycle until just prior to impact;
(b) accepted that it was possible on the evidence that there were dark shadows in the area where the motorcycle would have been at the time the appellant was stationary in his vehicle at the intersection and that at the time of the appellant entering the intersection, the dark-coloured motorcycle and the dark-coloured rider could have been emerging from the shadows.
22 The ground does not expressly refer to the A pole. Counsel referred to it in argument but accepted that a driver should take account of any blind spot they are aware of.
23 The contention that it was not open to the magistrate to find that Mr Harris was not driving attentively cannot succeed. The finding that the motorcycle had its headlight on was unchallenged. On the evidence before her Honour, a motorcycle with its headlight on it was clearly visible to a car stopped at the intersection, even as it passed through the shadows. The conclusion that the prosecution had proved that Mr Harris did not look adequately (or was not driving attentively) was clearly open.
24 There is, however, a second aspect to the ground of appeal. Counsel submitted that, even if Mr Harris looked inadequately, that might constitute negligence, even glaring negligence, but not dangerous driving. Dangerous driving requires something more again. Counsel accepted that her Honour stated the test of what constitutes dangerous driving correctly, but argued that she must have failed to apply correctly it in arriving at the result. Counsel further submitted that, as a matter of law, 'momentary inattention can technically amount to dangerous driving but the reality is it almost never does'. And later, counsel submitted that, under the test currently applied 'this kind of momentary inattention might be careless, might be glaringly negligent, but it's not dangerous'.
25 Counsel relied for this submission upon the decision of the Court of Appeal in McPherson v Lucas [2008] WASCA 56, where the court affirmed that the concept of dangerous driving is that described by Barwick CJ in McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44, 49 - 50:
This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper
(Page 8)
- conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby.
- See also Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, 579.
26 In the reasons of the majority in King v The Queen [2012] HCA 24; (2012) CLR 588, the court affirmed the test in McBride, saying
It may be that in many if not most cases dangerous driving is a manifestation of negligence in the sense of carelessness. It may also be a manifestation of deliberate risk-taking behaviour. It may be that in some circumstances where particular attention is required to the road and to other road users, momentary inattention will result in a manner of driving that is dangerous within the meaning of the section. The assessment of whether the manner of driving was dangerous depends on whether it gave rise to the degree of risk set out by Barwick CJ in McBride and adopted by the plurality in Jiminez in relation to s 52A of the Crimes Act 1900 (NSW). That is the level of risk which should inform a trial judge's direction to a jury in respect of the offence under s 319.
27 In this case, the magistrate first made findings about the actual driving behaviour of Mr Harris. In the passage I have set out above at [20], her Honour accepted that to convict she must find that the only rational inference was that Mr Harris did not look adequately. Having reached a conclusion on that issue, she then considered whether the manner of his driving in the particular circumstances was dangerous. Her Honour found that his inattention or failure to make sufficient effort to see any oncoming vehicle before he entered the intersection was objectively dangerous and constituted a danger to the public. In my opinion, it is implicit in these findings that her Honour took into account that Mr Harris was about to cross a busy road. The fact that Mr Harris exercised some degree of care in stopping his vehicle and looking, and that he was not distracted by a mobile phone or intoxicated, are all relevant but do not preclude the finding her Honour made.
28 I am not satisfied that her Honour must have applied the wrong test, or applied the test incorrectly, to arrive at the result she did. The appellant has not demonstrated the error of law asserted in the ground of appeal. I grant leave to appeal but dismiss the appeal.
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