HARRIS -v- SMITH [2013] WASC 17

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 17
Case No:	SJA:1087/2012	Heard:	21 JANUARY 2013
Coram:	ALLANSON J	Delivered:	25/01/13
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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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

CITATION : HARRIS -v- SMITH [2013] WASC 17 CORAM : ALLANSON J HEARD : 21 JANUARY 2013 DELIVERED : 25 JANUARY 2013 FILE NO/S : SJA 1087 of 2012 BETWEEN : DAVID EDWARD HARRIS

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…

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 Harris v Smith

Details

AGLC: Harris v Smith [2013] WASC 17
Case: [2013] WASC 17
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Harris v Smith concerns an appeal against a conviction for dangerous driving causing grievous bodily harm. The appellant, David Edward Harris, was found to have driven in a manner that was dangerous to the public by entering an intersection without adequately looking for oncoming traffic, resulting in a collision with a motorcycle ridden by Paul David Pearce, who suffered grievous bodily harm. The primary legal issue in this appeal was whether the magistrate erred in finding that the only rational inference was that Harris drove so inattentively as to constitute a danger to the public, when it was open to the magistrate to conclude that the prosecution had failed to disprove beyond reasonable doubt the possible inference that Harris had been driving attentively but had reasonably failed to see the motorcycle.

The court examined the evidence presented and the reasoning employed by the magistrate. The magistrate found that Harris should have seen the motorcycle, which had its headlight on, even as it passed through areas of shadow. The magistrate also considered other factors such as the A pole, although no evidence suggested it obstructed Harris' view. The court held that the magistrate's conclusion that Harris did not look adequately was clearly open on the evidence and that the magistrate applied the correct test in determining whether the driving was dangerous. The court further found that the magistrate correctly considered the nature of dangerous driving, which requires a serious breach of proper conduct that is potentially dangerous to others.

Ultimately, the appeal was dismissed, and the conviction for dangerous driving causing grievous bodily harm was upheld.

Orders