Heckingbottom v Kell
[2013] WASC 208
•30 MAY 2013
HECKINGBOTTOM -v- KELL [2013] WASC 208
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 208 | |
| Case No: | SJA:1111/2012 | 5 FEBRUARY 2013 | |
| Coram: | HALL J | 30/05/13 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on grounds 1, 2 and 4 Appeal against conviction dismissed Appeal against sentence allowed | ||
| B | |||
| PDF Version |
| Parties: | TAMARA HECKINGBOTTOM MARK DANIEL KELL |
Catchwords: | Criminal law Appeal against conviction and sentence Dangerous driving causing bodily harm Whether failure to stop was dangerous in circumstances where vision obscured by sun Whether failure explained by another possible inference Error as to minimum disqualification period Turns on own facts |
Legislation: | Road Traffic Act 1974 (WA), s 59A |
Case References: | Brown v Lucas [2011] WASC 356 Harrison v Smith [2013] WASC 17 Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 Kaighin v The Queen (1990) 1 WAR 390 Lyford v Ride [2009] WASC 106 McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44 McPherson v Lucas [2008] WASCA 56 Peacock v Jones [2010] WASC 358 Turner v Hughes [2000] WASCA 276; (2000) 32 MVR 225 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
MARK DANIEL KELL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE D POTTER
File No : KH 229 of 2012
Catchwords:
Criminal law - Appeal against conviction and sentence - Dangerous driving causing bodily harm - Whether failure to stop was dangerous in circumstances where vision obscured by sun - Whether failure explained by another possible inference - Error as to minimum disqualification period - Turns on own facts
(Page 2)
Legislation:
Road Traffic Act 1974 (WA), s 59A
Result:
Leave to appeal granted on grounds 1, 2 and 4
Appeal against conviction dismissed
Appeal against sentence allowed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms K A T Pedersen
Solicitors:
Appellant : Mark Andrews Legal
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Brown v Lucas [2011] WASC 356
Harrison v Smith [2013] WASC 17
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
Kaighin v The Queen (1990) 1 WAR 390
Lyford v Ride [2009] WASC 106
McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44
McPherson v Lucas [2008] WASCA 56
Peacock v Jones [2010] WASC 358
Turner v Hughes [2000] WASCA 276; (2000) 32 MVR 225
(Page 3)
- HALL J:
Introduction
1 On 28 August 2012 the appellant was convicted in the Magistrates Court at Karratha of dangerous driving occasioning bodily harm contrary to s 59A(1)(b) of the Road Traffic Act 1974 (WA) (RTA). The conviction followed a trial that occurred the same day. The magistrate imposed a fine of $300 and made an order for disqualification from driving for two years. The appellant seeks leave to appeal against her conviction and the disqualification order.
Factual background
2 The uncontested facts were as follows. At approximately 6.55 am on 29 September 2011 the appellant was driving her Toyota Prada vehicle south on Balmoral Road in Karratha. At around the same time Ms Natalie Harrison was riding her bicycle on Hillview Terrace.
3 Hillview Terrace and Balmoral Road intersect at a roundabout. Ms Harrison arrived at the roundabout first and entered it, intending to continue further on Hillview Terrace. Whilst Ms Harrison was travelling through the roundabout the appellant's vehicle entered and struck her on her left hand side. The point of impact was a few metres in from the entry point of Balmoral Road.
4 Ms Harrison was knocked from her bike and suffered grazing to her left arm and shoulder, cuts to both hands, grazing to her left leg and damage to her knee. The knee damage resulted in her kneecap 'maltracking' which required surgery.
5 The only issue at trial was whether the manner of driving by the appellant was dangerous. It was not disputed that the appellant was the driver of the vehicle or that the incident had caused bodily harm to Ms Harrison. The essential issue was whether the appellant had failed to ensure that the roundabout was clear of other vehicles before proceeding into it. In the particular circumstances prevailing on the day in question the magistrate found that the appellant should have brought her vehicle to a complete stop before entering the roundabout and ensured that it was clear and her failure to do so was dangerous.
Grounds of appeal
6 The amended grounds of appeal are as follows:
(Page 4)
- 1. The learned Magistrate erred in law and/or fact when, contrary to the High Court decision in Jiminez v The Queen (1992) 173 CLR 572, it was not reasonably open to him to identify a feature of the appellant's driving that was capable of subjecting the public to some risk over and above that ordinarily associated with the driving of a motor vehicle.
2. The learned Magistrate erred in law in finding that the only rational inference open on the evidence was that the appellant was not sufficiently attentive to the possibility that a collision might occur, it being open to the Magistrate to conclude that the prosecution had failed to prove beyond reasonable doubt the possible inference that the appellant had been driving attentively but had failed to see the vehicle.
3. The learned Magistrate erred in law and/or fact when he held that the defence available to the appellant pursuant to s 24 of the Criminal Code had not been established; and
4. The learned Magistrate erred when he misdirected himself as to the relevant minimum period of disqualification.
The evidence
Natalie Harrison
7 Ms Harrison gave evidence that she left her home on her bike at 6.45 am on the morning of 28 September 2011. She rode east down Hillview Terrace towards the roundabout at the intersection of Balmoral Road. As she approached the roundabout she looked to her left to make sure that it was safe to proceed. She then rode into the roundabout. In her peripheral vision to her left she saw a vehicle travelling towards the roundabout. The vehicle drew her attention because it did not appear to be slowing down sufficiently to stop.
8 Ms Harrison then said:
I've continued through the roundabout. At this stage the vehicle's obviously closer to me. I have actually turned to my left and then realised that it wasn't going to stop. Next thing it's hit me and I've been hit off my bike (ts 28.8.12, page 5).
9 Ms Harrison estimated that she was travelling at no more than 10 km per hour at the time. She was wearing a red and white striped singlet and black three quarter length pants as well as a bicycle helmet, sneakers and socks.
(Page 5)
10 The bull bar of the vehicle impacted with Ms Harrison's left thigh. She was knocked from her bike and was flung to the ground. She put out her left hand as she fell and this resulted in cuts and injuries to that hand. The vehicle stopped and the appellant, who was the driver, came over to Ms Harrison and said, 'Oh my god, I'm so sorry. I didn't see you'.
11 Ms Harrison said that it was a normal September clear day. She had approached the roundabout from the west and the sun was ahead of her in the direction towards which she was travelling.
12 In cross-examination it was put to Ms Harrison that in her police statement she had not stated that she turned her head to the left when she saw the car. She accepted that she did not turn her head, though this did not affect her claim that she had seen the car in her peripheral vision.
Constable Mark Kell
13 First Class Constable Mark Kell was a police officer stationed at Karratha police station. The police station is in close proximity to the roundabout. He was at the police station at 7.00 am on 28 September 2011 and noticed a commotion at the roundabout.
14 Constable Kell attended at the scene and saw Ms Harrison sitting on the kerb. The appellant was present and told him that she had been driving, that she had not seen Ms Harrison and that she had hit Ms Harrison as she was negotiating the roundabout. She said that she did not see the bike rider before the impact. A breath test was administered which gave a negative result.
15 On 8 November 2011 Constable Kell conducted an interview with the appellant. In that interview the appellant said that she was unsure whether she stopped her vehicle prior to entering the roundabout. She said:
So basically I pulled up to the roundabout and I actually stopped, um, well I think I stopped, and I looked and there was no vehicles, that I could see, and so I pulled out and at that point I did see, as I pulled around the roundabout, the cyclist and hit the brakes but it was too late, I guess I must have been looking for vehicles not perhaps cyclists, I didn't see her but um I must admit her shirt was blending very well with the surroundings and um I, you know, like I say, I just didn't see her.
(Page 6)
16 When asked in the interview whether she was sure that she stopped at the roundabout the appellant said:
No I'm not positive, but I certainly wasn't going very fast because I do remember slowing right down and, and thinking there's no vehicles. Normally, I don't stop at a roundabout but you do come to almost a stop, and if there's a vehicle you stop, but ... I wasn't going very fast ... yeah well I thought I stopped, I'm pretty sure I stopped, but it might have just been a crawl, not a stop, stop. You know, not an absolute stop. Definitely was only going slow.
The appellant's evidence
17 The appellant gave evidence that on the morning of 28 September 2011 she had attended a gym on Balmoral Road. The gym was a short distance from the roundabout. She said that she pulled out of the gym driveway and approached the intersection and 'came to a stop, or very close to it'. She said that she looked left and right and, as there was nothing coming from the right she pulled out.
18 The appellant said that as she pulled out she bumped into the cyclist, knocking her off her bike. She said that she did not see anyone in the intersection and would not have moved into it had she done so.
19 The appellant was asked about the position of the sun. She said:
Well, basically as you head through that roundabout in the direction I was heading, which was south, southeast is the police station and in that vicinity is where the sun arises in the mornings at that time of day in that particular time of year. It does swap around through the year but at that time of the morning, quite early, it's quite piercing and it streams over that vicinity of the police station courthouse trees in that area - and that's where it was coming from (ts 28.8.12, page 21).
20 A little later she said:
I can only assume that as the sun was coming over that vicinity its blinded my vision in that quadrant, if you like. So as I've looked through from left to right the sun's blocked that area, if you like. ... I've looked right, there's been no traffic coming so I've pulled out and as I've pulled out obviously I progressed further. The building has then obscured the sun at the time that I've seen the cyclist and I've hit her (ts 28.8.12, page 22).
21 In cross-examination the appellant confirmed that she attended the gym at least three times a week and was familiar with the roundabout. She also agreed that she would have been aware of the position of the sun in relation to the roundabout at that time of the day. She was asked:
(Page 7)
- Have you ever, previous to this matter, ever had any concern about the sun at that time?---Yes, I have.
Okay and what was that concern based on?---The fact that it blinds you when you're coming through that intersection. That intersection as well as the top road heading home. It's very hard that time of day to see.
So you are saying that you had a concern prior to that particular?---Oh it wasn't a concern but I certainly note that the sun is worth being cautious when you drive rather than perhaps sitting on the speed limit (ts 28.8.12, page 24).
22 The appellant was questioned as to how it was that she had not seen the cyclist approaching from her right:
But as you were approaching the intersection it's fair to say the cyclist would have been to your right wouldn't it?---Possibly would have been but at (indistinct) approached the intersection I wasn't looking at that point because I hadn't stopped (ts 28.8.12, page 24).
23 The appellant agreed that generally she would slow down when approaching the roundabout. She said that she could not remember whether she stopped but said that 'it was close to a stop'. She said that there was usually very little traffic coming from Hillview Road on the right at that time of day. However, she maintained that she did look to the right.
Magistrate's reasons
24 After summarising the evidence the magistrate identified the real issue as being whether the appellant was driving her car in a manner that was dangerous. His Honour then said:
In this case Ms Heckingbottom gave, I think, a very frank account. I think she was a truthful witness, as was Ms Harrison - I mean, they gave their views on an accident that occurred. Now, it was a motor vehicle accident between a motorcar and a bicycle. The issue for the court, as I said, is objectively whether Ms Heckingbottom's driving was dangerous in all the circumstances (ts 28.8.12, page 36).
25 His Honour made reference to relevant case law. He then said:
So here of course Ms Heckingbottom has been very honest, I think, in saying that she simply did not see Natalie Harrison until she actually hit her. So she proceeded into the roundabout on the basis that the roundabout was clear. Now, in terms of dangerous driving I've alerted of course to the fact of the environmental factors - and Ms Heckingbottom was again very honest about some of these matters in her video record of interview - but one thing that really struck me about the environmental conditions that she
(Page 8)
- described at 6.45, or thereabouts, AM in September particularly is that the sun comes from the south easterly direction streaming - and they were her words, 'Streaming over the police station' in essence making the roundabout itself in effect very much a blind spot.
For that reason of itself greater care and greater caution needs to be exercised, I would have thought, in approaching that roundabout because Ms Heckingbottom also noted that it was a roundabout that she had travelled through on numerous occasions, multiple occasions, after a gym class - same time. She knew that it was a roundabout that required additional levels of caution before proceeding into it.
Her evidence was that she may have stopped but quite possibly didn't and was crawling into the intersection - and that was her evidence. She probably rested more on evidence that she didn't come to a complete stop and moved into the intersection without coming to a full stop. That's the way I heard her evidence this afternoon, but also the evidence that she gave to - or, sorry, the video record of interview - that's the way she described her entry into the roundabout to the interviewing police. She doesn't wear glasses. There is nothing wrong with the vehicle itself.
At the time of course there were a number of matters that were playing on Ms Heckingbottom's mind as well. She described those issues in the video record of interview. She's had only limited sleep. I don't think the prosecution's case could rest on a lack of sleep leading to her driving in a dangerous manner because there's simply no evidence to say lack of sleep is what caused this accident and that because of the lack of sleep that it was dangerous for Ms Heckingbottom to drive - but, as I say, I think when I consider her evidence, and the clear evidence that she gave, about the conditions that she was faced with - not just on this day but in days previous, at that roundabout - about the sunlight streaming into that.
In effect she was saying that it's, as I say, a blind roundabout. It would seem to me that additional and really quite extreme caution should be exercised by all drivers particularly at that time of morning because it is clear that unless you come to a complete stop at the intersection on the broken white lines the potential for danger to other users is real - and it is that exact reason why Ms Heckingbottom was unable to see Ms Harrison who was travelling on a bike. Ms Harrison proceeded some significant distance into the roundabout before she was in fact struck by Ms Heckingbottom.
So, you know, it's clear that the sunlight was a real factor here and Ms Heckingbottom, in my view and objectively applying that test, should have come to a complete stop and made sure that roundabout was clear of all vehicles before proceeding into the intersection. I think each case needs to be looked on its own merits and, as I say, the environmental factors that apply to a particular site when considering and applying the objective test in dangerous driving - and I think in these circumstances the prosecution
(Page 9)
- has made out its case that Ms Heckingbottom did drive in a dangerous manner.
...
It doesn't seem to me that this is necessarily a momentary lapse of attention but rather, as I say, when you apply the objective test the conditions that were experienced by Ms Heckingbottom on the day and in previous days, then she should have applied a higher level of caution than she did on the day. I've turned my mind to firstly the defence of mistake of fact that was perhaps raised. I'm not sure that that's properly raised on the evidence. That's really based on my findings that it might have been an honest, but I don't think it was a reasonable belief in those circumstances.
I've also turned my mind to whether this was careless, and I've deliberated on that particular issue whether it was careless driving - and I think this given, as I say, those circumstances I've described - the environmental circumstances in particular, it seems to me that this is more than just a driving without undue care and attention. Yes. So the charge is proved (ts 28.8.12, pages 37 - 39).
The relevant law
26 Section 59A(1) of the RTA provides that:
59A. Dangerous driving causing bodily harm
(1) If a motor vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person and the driver was, at the time of the incident, driving the motor vehicle -
(a) while under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle; or
(b) in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person,
the driver commits an offence.
(2) For the purposes of this section -
[(a) deleted]
(b) it is immaterial that the bodily harm might have been avoided by proper precaution on the part of
- a person other than the person charged or might have been prevented by proper care or treatment.
- (3) Subject to subsection (3a), a person convicted of an offence against subsection (1) is liable -
(a) for a first offence, to a fine of 180 PU or to imprisonment for 9 months; and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver’s licence for a period of not less than 12 months;
(b) for a second or subsequent offence, to a fine of 360 PU or to imprisonment for 18 months; and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver’s licence for a period of not less than 18 months.
(3a) In the case of an offence under subsection (1)(a), or an offence under subsection (1)(b) committed in circumstances of aggravation, the offence is a crime and a person convicted of it is liable to a fine of any amount and imprisonment for 10 years and in any event the court convicting the person shall order that he be disqualified from holding or obtaining a driver’s licence for a period of not less than 2 years.
Summary conviction penalty: imprisonment for 3 years or a fine of 720 PU and in any event the court convicting the person shall order that he be disqualified from holding or obtaining a driver’s licence for a period of not less than 18 months.
(4A) A court sentencing a person for an offence against this section committed in the circumstance of aggravation referred to in section 49AB(1)(c) must -
(a) sentence the person to a term of imprisonment of at least 6 months; and
(b) not suspend the term of imprisonment.
(4B) Subsection (4A) applies whether the person was convicted on indictment or summarily and despite the Sentencing Act 1995 Part 5.
(4) A person charged with an offence against this section may, instead of being convicted of that offence, be convicted of an offence against section 61 or 62.
(Page 11)
27 The offence in s 59A is similar to those in s 59 and s 61. Section 59 of the Act creates the offence of dangerous driving causing death or grievous bodily harm. Section 61 creates the offence of dangerous driving without the need to prove any consequential injury. The element of dangerous driving in each case is the same.
28 An offence under s 59A is not established by demonstrating that an incident resulting in bodily harm was caused by a driver failing to drive with due care and attention: Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572. The High Court in that case was considering s 52A of the Crimes Act 1900 (NSW) which is in similar terms to s 59A of the RTA. The High Court in Jiminez said:
The manner of driving encompasses all matters connected with the management and control of a car by a driver when it is being driven. For the driving to be dangerous for the purposes of s 52A there must be some feature which is identified not as want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention [579].
29 In Kaighin v The Queen (1990) 1 WAR 390 it was held that for driving to be dangerous it must in reality be actually or potentially dangerous to the public or another person. A momentary lapse of attention may constitute dangerous driving. The test as to whether the driving is dangerous is objective.
30 It is not an element of the offence, and it is unnecessary for the prosecution to prove that the driver deliberately or intentionally drove dangerously or created a danger to the public or another person: Turner v Hughes [2000] WASCA 276; (2000) 32 MVR 225 [18] - [21]. However, liability is not absolute and does not extend to involuntary acts.
31 The defence of mistake under s 24 of the Criminal Code may be relied upon and, if the accused satisfies the evidential onus, the prosecution must negative that defence beyond reasonable doubt: McPherson v Lucas [2008] WASCA 56.
32 In McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44 the relevant provision under consideration was also s 52A of the Crimes Act 1900 (NSW). Barwick CJ stressed the need to assess whether a manner of driving was dangerous by having regard to the particular circumstances. His Honour said (49, 50):
(Page 12)
- The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which here intrinsically in all the circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or within the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public, but the need for death or injury to a person to result from impact with a vehicle so driven may make that question unlikely to arise, though the possibility of it doing so must be acknowledged.
This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result that gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: It is the potentiality and fact of danger to the public in the manner of driving, whether realised by the accused or not, which makes it dangerous to the public within the meaning of the section (49 - 50).
33 In McPherson v Lucas McLure JA (as she then was) said:
The State's position is that the objective physical movement of the car is a fact in issue in an offence under s 59A. That is wrong. The relevant fact in issue is the actual driving behaviour of the driver: R v Coventry (1938) 59 CLR 633; McBride. The objective physical movement of the car is only a fact from which an inference about the actual driving behaviour of the driver can often but not always be drawn. It will most often be drawn when the driving is intrinsically dangerous regardless of the circumstances. It will be drawn less often when the quality of the driving depends on the surrounding circumstances as in McBride and this case. An allied contention of the State was that whether or not the appellant looked to her left to determine if there were oncoming cars on Broadway is irrelevant because the test of dangerous driving is objective. The correct position is that it is necessary to first make factual findings as to the actual driving behaviour of the driver. Whether or not the driver looked for oncoming traffic is part of the manner of driving and is relevant. The objective question is whether the manner of driving so found on the facts has the necessary quality of being dangerous to the public. In making this objective assessment, regard is had to what the driver knew or ought reasonably to have known [31].
34 In McPherson the appellant was charged with dangerous driving causing bodily harm contrary to s 59A of the RTA. That case involved a collision at an intersection that occurred as a result of the appellant failing
(Page 13)
- to give way. At first instance, the magistrate dismissed the charge on accepting the evidence of the appellant that she looked carefully both ways before entering the intersection. The magistrate's decision was overturned on appeal by Hasluck J. The issue before the Court of Appeal was whether the appellant drove so inattentively when approaching and entering the intersection that such inattentive driving constituted a danger to the public. McLure JA (with whom Wheeler and Miller JJA agreed) said that as the magistrate had accepted the appellant's evidence as to her manner of driving it was not open to the court to be satisfied beyond reasonable doubt that the appellant drove in a manner dangerous to the public [34]. Her Honour said that it may be impossible to answer the question as to why the appellant did not see the complainant's car and still have reasonable doubt as to whether the appellant was driving so inattentively as to be a danger to the public.
35 In Peacock v Jones [2010] WASC 358 Blaxell J allowed an appeal from a conviction for dangerous driving causing grievous bodily harm. In that case the appellant turned his vehicle in front of a motorcycle which then collided with his vehicle. His Honour said that on the facts of the case there were possible explanations as to why the appellant might not have seen the complainant on his motorcycle as he moved into the intersection even if he was acting with all reasonable care and attention. The circumstances were that at the time of the collision it was dusk and the motorcycle was approaching from around a bend in front of a four wheel drive. The four wheel drive had its headlights on and the motorcycle was black and the motorcyclist was wearing dark clothing. His Honour said that those circumstances offered possible explanations as to why the appellant in that case might not have seen the motorcycle before moving out into the intersection.
36 In Lyford v Ride [2009] WASC 106 Blaxell J allowed an appeal against conviction on two charges of dangerous driving causing bodily harm. The charges in that case arose from a collision at a rural intersection when a vehicle driven by the appellant collided with another vehicle which had right of way. The presence of the intersection was difficult to discern at a distance and roadside vegetation obstructed the appellant's view of the other vehicle until moments before the collision. The magistrate found that the appellant had been aware for a considerable distance from the intersection that he could not see to his right. Blaxell J said that the evidence was incapable of providing any support for that particular inference. His Honour said that there was also an alternative reasonable inference available, that being that the appellant did not observe the intersection until it was too late to stop. This inference was
(Page 14)
- supported by the evidence of the unusual problems with the intersection and the trap that it posed to drivers travelling in the same direction as the appellant had done.
37 In Brown v Lucas [2011] WASC 356 an appeal against conviction of dangerous driving causing grievous bodily harm was dismissed. In that case a truck driven by the appellant had approached a roundabout. Ahead of the appellant's truck was a motorcycle that had stopped at the give way line. After pausing for a short time the appellant moved forward with the intention of driving into the roundabout. As he did so the truck collided with the motorcycle which was still stationary. The truck continued to move forward knocking over the motorcycle and trapping the cyclist underneath the truck. The appellant's evidence that he had not seen the motorcycle was accepted by the magistrate, however, the appellant was found guilty on the basis that he could and should have seen the motorcycle. I held that that conclusion was supported by the evidence and that an appropriately attentive driver would have been looking towards the give way line as he approached the intersection. This may have been a momentary lapse of attention, but it was open to find that it involved driving in a manner that was dangerous.
38 In Harrison v Smith [2013] WASC 17 the appellant was convicted of dangerous driving causing grievous bodily harm. The appellant in that case drove into an intersection and into the path of a motorcycle which collided with his vehicle. The appellant was familiar with the intersection and said that he had looked both ways before moving. It was suggested in defence that there were factors that could account for why the appellant had failed to see the motorcycle. These were the presence of shadows on the road, that the cyclist was wearing dark clothing and the motorcycle was black and that there was a possible obstruction caused by a pillar at the end of the appellant's windscreen. There was evidence that indicated that a motorcyclist with a headlight (as had been the case) could still be seen notwithstanding dark clothing and shadows on the road. As to obstruction from the pillar, the magistrate found that a prudent driver familiar with his vehicle would make allowance for such obstructions. The magistrate found that whilst there may be occasions where the evidence offers a possible explanation for why a driver did not see another vehicle, there was no other possible explanation in this case other than that the appellant had failed to look as a prudent driver should. Allanson J held that no error of law had been demonstrated and that the appeal must be dismissed.
(Page 15)
39 I have referred to the cases of Peacock v Jones, Lyford v Ride, Brown v Lucas and Harrison v Smith to illustrate that seemingly similar cases can produce different results. These different results can be explained by close attention to the particular circumstances. The cases did not turn on whether there had been a failure to give way but on the reasons for that failure. In Peacock v Jones and Lyford v Ride there were particular features affecting visibility which meant that the drivers in those cases could have been acting with all reasonable care and attention and yet not have seen the other vehicles. The same was not true in Brown v Lucas and Harrison v Smith. In the latter two cases whilst reasons for not being able to see the other vehicles were advanced, those reasons were considered and rejected. That left as the only reasonable inference that the appellants had driven forward and failed to look in circumstances where that failure was inherently dangerous.
Ground 1
40 The appellant contended that the magistrate's finding that the failure to come to a complete stop could not justify a conclusion that the manner of driving was so inattentive as to constitute a danger to the public. It was submitted that the only requirement was to give way and this only required the vehicle to slow down to such an extent as to allow an oncoming person or vehicle to continue on their legitimate course: see reg 7 Road Traffic Regulations 2000 (WA).
41 It was submitted by the appellant that her evidence both in the police interview and at the trial had been that if she had not stopped she at least slowed down significantly as she approached the roundabout. She also said that she had looked to the right, that is in the direction that Ms Harrison had come from. As the magistrate did not specifically reject this evidence, and indeed referred to the appellant as being an honest witness, it was submitted that the magistrate had failed to identify any feature of the appellant's driving which was dangerous to the public within the meaning of s 59A of the RTA.
42 There are a number of difficulties with the appellant's argument. First, it is clear that the magistrate was not treating the dangerous driving as being a failure to stop looked at in isolation. Whether or not there was a legal requirement to stop at the roundabout, the magistrate was concerned as to what was appropriate bearing in mind the existing conditions and, in particular, the fact that the sun was obscuring part of the roundabout to the east. The appellant was familiar with the intersection and that at this time of the day the sun created a blind spot.
(Page 16)
- The magistrate's reasoning was that the appellant, being aware of these conditions, should also have been aware of the need to exercise particular caution. Seen in context, the magistrate was in effect saying there was a requirement to stop in this case to ensure that any vehicle that was in the roundabout and immediately in front of the appellant had time to clear before she entered. Thus, the requirement to stop was not one imposed by any regulation but by the existing conditions, the appellant's knowledge of them and the need to act with due caution.
43 Secondly, the magistrate's finding was not merely that the appellant should have stopped but that she, 'should have come to a complete stop and made sure the roundabout was clear of vehicles before proceeding into the intersection'. It is clear from this that the magistrate was incorporating not only considerations of speed and timing but the keeping of an appropriate lookout. There was an obvious difficulty in the appellant's evidence. If she had been looking to the right as she approached the roundabout she should have been able to see Ms Harrison on her bicycle. The appellant accounted for this by saying that she did not look to the right until she reached the roundabout. However, the impact occurred within a few metres of the entry point. If the appellant's evidence as to looking right and seeing nothing was accepted, the only explanation is that Ms Harrison must have passed her line of vision at that point. For the appellant to have been unable to see the bicycle but have impacted it so close to the entry point is only consistent with the appellant's vehicle not coming to a complete stop. It is also consistent with the evidence of Ms Harrison that she saw the vehicle approaching from her left without stopping.
44 It was suggested on the hearing of the appeal that it was not open to the magistrate to find that the appellant failed to stop because he referred to her as a frank and honest witness. However, this argument assumes that the appellant's evidence was that she did, in fact, stop. Her evidence was not clear on that point. She initially said that she thought she stopped, but she conceded that she may have not done. As against this Ms Harrison, who the magistrate also found to be an honest witness, said that when she saw the car she realised 'it wasn't going to stop'. A finding that the appellant did not stop was not inconsistent with a view that the appellant was an honest witness. It was a finding properly open on the evidence.
45 In my view, it was reasonably open for the magistrate to find that the appellant should have come to a complete stop and made sure the
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- roundabout was clear before entering the intersection. To have failed to do so in the particular circumstances was dangerous because:
(1) the appellant knew that at the relevant time of the morning the sun 'blinds you when you are coming through that intersection' (ts 24);
(2) the appellant entered the roundabout despite her line of sight being obscured and without stopping - either at all or for long enough to ensure the roundabout was clear;
(3) Ms Harrison said that it appeared to her that the appellant's vehicle was travelling too fast to stop as it approached the roundabout (ts 15);
(4) the appellant agreed that the reason for slowing down when approaching a roundabout was to give more time to observe vehicles entering it (ts 28);
(5) the cyclist travelled from the west to the east and so was coming from the appellant's right. The sun was blocking her vision in front, or to the south east (ts 22);
(6) the appellant said she was not looking to her right as she entered the intersection because she had not stopped (ts 24). This accentuated the need to ensure that any vehicles which she had not looked for prior to reaching the roundabout had time to clear it;
(7) the appellant was able to see the bicycle on entering the roundabout and immediately prior to hitting it (ts 25).
46 Taken together the above evidence is sufficient to establish that had the appellant stopped and thereby allowed time for any vehicle in the blind spot to move beyond it, the collision would have been avoided. What was dangerous was not merely the failure to stop but the failure to stop in circumstances where the appellant had not looked to the right until reaching the roundabout and without being able to see the part of the roundabout into which she intended to drive. There was, in these circumstances, a need to exercise great caution before moving forward. By not stopping and pausing long enough for any vehicle to clear the blind spot the appellant drove in a way that subjected other road users to a risk over and above that ordinarily associated with driving a motor vehicle.
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Ground 2
47 The appellant submits that before concluding that the only reasonable inference available was that the failure of the appellant to see the cyclist constituted dangerous driving regard must be had to all of the evidence of the conditions facing the appellant. It was suggested that this case was similar to McPherson v Lucas in that the issue was whether the appellant drove so inattentively when approaching the intersection that such inattentive driving constituted a danger to the public.
48 The appellant submitted that given the road conditions, and in particular that the rising sun was creating a blind spot in the roundabout, an alternative inference was available, namely that even if acting with all reasonable care and attention the appellant simply could not have seen the bicycle in those conditions.
49 The difficulty with this ground is that the magistrate's conclusion was not based upon whether the appellant could or should have seen the bicycle. Rather, the issue was whether, in the relevant circumstances, the appellant ought to have stopped. The reason why a failure to stop was dangerous was because it did not allow for vehicles in the blind spot to clear it. Had the appellant stopped it is conceivable that she may have seen the bicycle but, in any event, it was open to the magistrate to conclude that a failure to stop was dangerous in these particular circumstances. Indeed, on the facts as found by the magistrate that was the only reasonable inference.
Ground 3
50 For a mistaken belief to excuse conduct that would otherwise be an offence it must be both honest and reasonable: s 24 Criminal Code. The appellant asserted a belief that the intersection was clear at the time she entered it. The magistrate accepted that the appellant was an honest witness in saying that she did not see Ms Harrison until she actually hit her. That may be the basis for an honest belief; the real issue is whether such a belief could, in the circumstances, be reasonable.
51 The magistrate said that he had turned his mind to this defence and that based on his findings, whilst such a belief may have been honest, he did not think it was reasonable in the circumstances. Given the appellant's evidence that she had not looked to her right before reaching the roundabout and the magistrate's finding that part of the roundabout was obscured by the sun, it was plainly open to conclude that a belief that there was nothing in the intersection was not reasonable.
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52 In any event, it is enough that the appellant's driving be potentially dangerous to the public to fall within the ambit of s 59A of the RTA: McBride v The Queen [49] - [50] (Barwick CJ); Jiminez v The Queen (579). Even if the roundabout had, in fact, been empty when the appellant entered it, her failure to stop was still potentially dangerous.
Ground 4
53 In imposing a two year disqualification period the magistrate stated, 'That's a minimum disqualification'. In fact, the minimum period of disqualification provided for a first offence of this type was 12 months: s 59A(3).
54 On the hearing of the appeal it was conceded that the magistrate had misdirected himself as to the minimum disqualification. Whilst it was open to impose a disqualification period in excess of 12 months the period imposed in this case was clearly influenced by the error as to the relevant minimum period.
55 The magistrate stated that the offence was one at the lower end of the scale for this type of offending. He also took into account the appellant's otherwise good prior history and her favourable personal circumstances. For these reasons, he imposed a relatively low fine of $300.
56 I do not disagree with the magistrate's assessment of the seriousness of the offence and, in those circumstances, would set aside the disqualification period imposed by the magistrate and in lieu thereof impose disqualification from driving for 12 months. That disqualification will be taken to have taken effect on 28 August 2012: s 41 Criminal Appeals Act 2004 (WA).
Orders
(1) Leave to appeal granted in respect of grounds 1, 2 and 4.
(2) Leave to appeal refused on ground 3.
(3) Appeal against conviction dismissed.
(4) Appeal against sentence allowed to the extent of setting aside the 24 month disqualification from holding a licence and in lieu thereof imposing disqualification for 12 months from 28 August 2012.
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