Hasani v Read
[2003] WASCA 40
•6 FEBRUARY 2003
HASANI -v- READ [2003] WASCA 40
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 40 | |
| Case No: | SJA:1084/2002 | 6 FEBRUARY 2003 | |
| Coram: | PULLIN J | 6/02/03 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ARMAN HASANI ROBERT STANLEY READ |
Catchwords: | Traffic law Offences Dangerous driving Turns on own facts |
Legislation: | Road Traffic Act 1974, s 59 (1) |
Case References: | Hill v Baxter [1958] 1 QB 277 Jiminez v The Queen (1992) 173 CLR 572 Kroon v The Queen (1990) 52 A Crim R 15 McBride v The Queen (1966) 115 CLR 44 Stack v Appleby, unreported; SCt of WA (Wheeler J); Library No 99051; 2 February 1999 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
ROBERT STANLEY READ
Respondent
Catchwords:
Traffic law - Offences - Dangerous driving - Turns on own facts
Legislation:
Road Traffic Act 1974, s 59 (1)
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr R G W Bayly
Respondent : Ms S M De Maio
Solicitors:
Appellant : Gerard Edwards
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Hill v Baxter [1958] 1 QB 277
Jiminez v The Queen (1992) 173 CLR 572
Case(s) also cited:
Kroon v The Queen (1990) 52 A Crim R 15
McBride v The Queen (1966) 115 CLR 44
Stack v Appleby, unreported; SCt of WA (Wheeler J); Library No 99051; 2 February 1999
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
(Page 3)
1 PULLIN J: On 11 June 2002, the appellant was found guilty by Mr P S Michelides SM of two charges of dangerous driving causing grievous bodily harm, pursuant to s 59(1) of the Road Traffic Act 1974. He now appeals against that decision on the grounds that:
(a) the learned Magistrate made an error of fact in finding that the applicant was, at the relevant time, aware of the degree of his tiredness when driving his motor vehicle on 13 April 2002;
(b) the Magistrate did not distinguish between mere careless conduct and conduct which was dangerous; and
(c) there was no evidence to support a finding that the applicant did not have an honest and reasonable but mistaken belief as to his fitness to drive.
2 It is not in dispute that there was nothing unusual about the appellant's manner of driving until he suddenly drifted onto the verge and struck two pedestrians, causing grievous bodily harm to them. The Magistrate found that the appellant fell asleep at the wheel for a few seconds.
3 The appellant is a young medical practitioner with no previous record. He was employed as a resident medical officer at Fremantle Hospital. On the day of the accident, which was 13 April 2002, he had just finished a 10-hour night shift at the hospital. The Magistrate found that he had far too little sleep in a busy schedule at the hospital over the three preceding days.
4 The question in issue in such a case is not the manner of driving whilst asleep, but as the High Court observed in Jiminez v The Queen(1992) 173 CLR 572 at 579-580:
"… for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition that condition must be such that, as a matter of objective fact, his driving in that condition is a danger to the public."
5 It is the driving immediately preceding the falling asleep which is relevant. Their Honours explained that various matters will be relevant in reaching a conclusion as to whether the driving is objectively dangerous in that sense. They include the period of driving, lighting conditions, heating or ventilation of the vehicle; but that list is not exhaustive. Their Honours observed in Jiminez's case at 583:
(Page 4)
- "It follows from what has been said above that it was necessary for the prosecution in the present case to establish that the applicant was affected by tiredness to an extent that, in the circumstances, his driving was objectively dangerous."
6 So it is clear that the issue is not whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that in the circumstances the driving was a danger to the public. If the evidence does establish that the driver was so tired or drowsy that driving in that condition was a danger to the public, there may nevertheless arise a defence of honest and reasonable mistake.
7 The driver would, in relation to that defence, bear an evidentiary burden of showing that there was no warning of the onset of sleep, which the prosecution would then have to disprove beyond reasonable doubt. That evidentiary burden was discharged in this case.
8 In this case, the learned Magistrate found that the appellant's condition at the time of driving was such that, objectively, he was driving in a manner dangerous to the public, and found that it was unreasonable in the circumstances to believe he would not fall asleep. I will read some parts of the reasons for decision. The Magistrate said:
"On the journey home before the collision my finding is that the defendant felt tired."
9 The appellant does not dispute this finding, and it is not in dispute that he had no more than five hours' sleep the day before the accident. On the same page, the Magistrate continued:
"My findings are that the [appellant's] driving in reality became potentially dangerous from the time he began to experience tiredness back in Leach Highway some minutes before the crash.
It was potentially dangerous because all of the ingredients were present for a dangerous result or an outcome. The [appellant] was in charge of a moving motor vehicle on public roads. He was fatigued - and he knew it - and with that fatigue came the likelihood of a loss of consciousness which inevitably carried with it a loss of control of the vehicle.
He was driving in a built-up area at about 9 am on a weekday and one has to accept, I think, as a matter of commonsense that
(Page 5)
- to drive at that time on a weekday one is driving in a relatively busy period. In my view - and I find it - the [appellant's] knowledge of his tiredness renders it unreasonable for him to believe, no matter how honestly, that he would not fall asleep."
10 The appellant complains about the finding that he was "fatigued." I dismiss that complaint, because there was evidence which the Magistrate was entitled to accept in reaching that conclusion. This evidence came via Constable Hartland, who interviewed the appellant. In answers to questions from that policeman, the appellant did say that he was mentally fatigued, and when he was asked what caused the collision, he said "Fatigue I think caused it."
11 It was at that point that he also disclosed that he had slept the day before between about noon and 4.30 to 5 pm. At page 113 of the appeal book, the Magistrate then said:
"I cannot find that feeling a bit tired makes any material difference to this finding. Any noticeable degree of fatigue is clearly a sign that the body needs rest and any reasonable person, particularly one trained in medicine, should realise that a feeling of tiredness is the only warning one is likely to get. A person succumbing to the temptation to continue driving in the hope of completing the journey knowingly assumes all of the risks associated with ignoring the body's warnings.
In my view it would be ridiculous and irresponsible to say that one must first experience a short sleep episode before one realises that one is at the stage of being dangerously behind the wheel in these circumstances. I am satisfied that sleep did not come upon the [appellant] without any warning and that when viewed objectively he should have been aware of the likelihood of dropping off to sleep when he experienced the tiredness both at work and on Leach Highway in the knowledge that he had had far too little sleep in a busy schedule over the previous three or so days.
The remedy was quite simple: to pull over and to find alternative means of transport home or to have a sleep then and there. He was at fault for continuing to drive in these circumstances. For these reasons I am satisfied beyond reasonable doubt that the [appellant's] belief that it was safe for him to continue driving was not reasonable and that his driving
(Page 6)
- immediately before the onset of sleep was, when viewed objectively and regardless of its consequences, dangerous."
12 The appellant argues that to be guilty, the appellant must have been more than careless, and that is clearly correct. See Jiminez v The Queen (supra) at page 579. The appellant submits that the Magistrate did not direct himself in those terms. True it is that the Magistrate did not expressly refer to the distinction between carelessness and dangerousness, but in my opinion it is clear that the Magistrate was conscious that he had to find that the driving was dangerous.
13 I therefore conclude that he did not fall into error on that point. This is clear from the end of his reasons, where he says, as I have quoted above, that he was
" … satisfied beyond reasonable doubt that the [appellant's] belief that it was safe for him to continue driving was not reasonable and that his driving immediately before the onset of sleep was, when viewed objectively and regardless of its consequences, dangerous."
14 The appellant also submits that there was no evidence to suggest that the appellant did not honestly and reasonably, but mistakenly, believe that he would not fall asleep. The appellant disputes the finding of the Magistrate in the last sentence of the second-last paragraph on page 112 of the appeal book that:
"The [appellant's] driving in reality became potentially dangerous from the time he began to experience tiredness back in Leach Highway some minutes before the crash."
15 It was submitted on behalf of the appellant that if that finding is correct, anyone would be guilty of dangerous driving if during the course of that driving they began to feel tired. It is true that if the appellant had merely felt a bit tired and there was no other evidence, then the Magistrate may have erred in convicting. However, this was not the only evidence.
16 First, there is the evidence that the appellant characterised his tiredness as fatigue and that he only slept four-and-a half to five hours the day before. In addition, the Magistrate found:
(a) that he had just finished a 10-hour night-shift;
(b) that he had remained awake for 25 hours around the time of his first night-shift three days before; and
(Page 7)
- (c) that he had not caught up properly for the next two shifts, and he was therefore in a condition of significant sleep deficit.
17 The awareness of the onset of tiredness or fatigue in those circumstances, coupled with the decision to continue driving, constitutes the dangerous driving and negatives the defence under s 24 of the Criminal Code. As Lord Goddard said in Hill v Baxter [1958] 1 QB 277 at 282: "If a driver finds that he is getting sleepy he must stop".
18 These conclusions also mean that I do not agree with the first ground of appeal, which I have set out above. It seems to me then that his Worship, having correctly understood the law, reached conclusions of fact which were open to him on the evidence and that therefore I ought not interfere with the findings which his Worship made. For those reasons, the appeal must be dismissed.
0
5
1