Hedge v Thurstun
[2001] WASCA 43
•22 FEBRUARY 2001
HEDGE -v- THURSTUN [2001] WASCA 43
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 43 | |
| Case No: | SJA:1214/2000 | 12 FEBRUARY 2001 | |
| Coram: | ROBERTS-SMITH J | 22/02/01 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction quashed Orders for fine and motor driver's licence disqualification set aside. Judgment of not guilty substituted | ||
| PDF Version |
| Parties: | TREVOR LEE HEDGE DANIEL ANDREW THURSTUN |
Catchwords: | Road traffic Driving in manner dangerous to the public or any person No evidence of danger to the public or any person Whether on appeal should be conviction on alternative of driving in a manner which is inherently dangerous Criminal law and procedure Appeal Justices Act 1902 (WA) Power on appeal Amendment of complaint by substitution of different offence Power to convict of different offence |
Legislation: | Road Traffic Act 1974 (WA), s 60(1) Justices Act 1902 (WA), s 46, s 199(1)(c) and (d) |
Case References: | A M Smith v The Queen [1976] WAR 97 Allen v Gittos (1995) 13 WAR 560 Attree v Randell (1993) 19 MVR 95 Kaighin v The Queen (1990) 1 WAR 390 McBride v The Queen (1965) 115 CLR 44 Mitchell v Myers (1955) 57 WALR 49 Walker v Osborne (1955) 22 MVR 363 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
DANIEL ANDREW THURSTUN
Respondent
Catchwords:
Road traffic - Driving in manner dangerous to the public or any person - No evidence of danger to the public or any person - Whether on appeal should be conviction on alternative of driving in a manner which is inherently dangerous
Criminal law and procedure - Appeal - Justices Act 1902 (WA) - Power on appeal - Amendment of complaint by substitution of different offence - Power to convict of different offence
Legislation:
Road Traffic Act 1974 (WA), s 60(1)
Justices Act 1902 (WA), s 46, s 199(1)(c) and (d)
(Page 2)
Result:
Appeal allowed
Conviction quashed
Orders for fine and motor driver's licence disqualification set aside. Judgment of not guilty substituted
Representation:
Counsel:
Appellant : Mr M J Hawkins
Respondent : Mr A Derrick
Solicitors:
Appellant : In person
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
A M Smith v The Queen [1976] WAR 97
Allen v Gittos (1995) 13 WAR 560
Attree v Randell (1993) 19 MVR 95
Kaighin v The Queen (1990) 1 WAR 390
McBride v The Queen (1965) 115 CLR 44
Mitchell v Myers (1955) 57 WALR 49
Walker v Osborne (1955) 22 MVR 363
Case(s) also cited:
Nil
(Page 3)
1 ROBERTS-SMITH J: At 11.25 am on Wednesday 28 June 2000 the appellant was riding a blue Kawasaki Ninja 900 motor cycle on Griffith Street, Burswood. He was observed by police officers who were stopped at a red traffic control light behind him at the intersection of Griffith Street and Great Eastern Highway. When the traffic lights changed to green, the appellant accelerated heavily and turned right onto Great Eastern Highway, heading South. Once he had passed through the intersection he continued to accelerate to a speed in excess of the 60 km per hour speed limit with the front wheel of his motor cycle off the ground. He continued along Great Eastern Highway for a distance of approximately 50 metres on one wheel before the police activated their emergency lights and siren. The appellant then pulled off into a side street where the officers stopped and spoke to him. When asked his explanation for riding in the manner described, he explained that he had just had a job interview in which he thought he had done well and he was excited.
2 By complaint dated 4 July 2000, the appellant was charged with an offence contrary to s 60(1) of the Road Traffic Act 1974 (WA), namely that he:
"Wilfully drove a motor vehicle, registered number IAG 552 on a road, namely, Great Eastern Highway in a manner that was, having regard to all the circumstances, dangerous to the public or to any person (sic)."
3 On 1 November 2000 the appellant appeared before a Magistrate in the Armadale Court of Petty Sessions and pleaded not guilty.
4 In addition to the facts as already briefly outlined above, the two police officers testified that the appellant drove his motor cycle with the front wheel off the ground at an angle of approximately 45-60 degrees for approximately 50 metres along Great Eastern Highway. The traffic density at the time was "probably about medium" and there were also pedestrians walking along the sidewalk. However, the only vehicle directly behind the appellant's motor cycle was the police vehicle which was some distance further back and there was no vehicle either immediately in front of the appellant's motor cycle or to either side of it.
5 The appellant gave evidence in his defence. He said he was an experienced motor cycle rider and at all relevant times was in control of his motor cycle. He said he did not deliberately cause the front wheel of his motor cycle to rise off the ground and when he subsequently brought it
(Page 4)
- down he did so not by "tapping" the rear brake, but by shifting up to the next gear so that the engine of the motor cycle came out of its "power band" and the front wheel came back to the ground smoothly. Describing his turn out of Griffith Street onto Great Eastern Highway he said (AB 19):
"When the light turned green, I, you know, checked the other ways; did the head check thing and accelerated and turned right. I believe I was in the most - - the extreme right hand lane when I actually went next to the median strip. As I straightened the bike up, as I accelerated, the bike started to lift on the back wheel. It's as simple as I short shifted into second and let it come back down.
Then the - - I heard the lights and sirens so I indicated left to go over to the - - middle lane then indicated left again to go to the other land and pull up the side street."
"… as the motor cycle straightened up the - - as you change direction, the rear suspension compresses and as I was accelerating the front popped up. You don't just roll off the throttle to put the front back down. That - - that's not nice. You sort of - - it'll just bang down so, you know the - - from the race track riding and the rest of it that I've done you know that you just shift up the next gear a lot earlier than what you might of so the engine comes out of its power band and the front comes back down to ground - - smoothly and as easily as possible."
7 Asked how he could brake while the front wheel was up off the ground he said it is possible to use the rear brake if you need to get the front wheel down instantly; it is possible to tap the rear brake which will obviously pivot the bike down and bring the front to the ground immediately. While the motor bike is travelling that way (that is with the front wheel off the ground) the rider is still in control and steers by adjusting his or her weight on the pegs (that is the footrests).
8 In cross-examination he said he was quite used to riding this motor cycle as it was his own and he had been riding it for approximately 12 months, but he agreed with the prosecutor's suggestion that he had used the accelerator a little bit too early when the bike was straightening up and so the front wheel just "popped (up)". He said he then
(Page 5)
- short-shifted and put it back down in the safest manner possible. He agreed with the police officer's estimation of distance that it was probably 40 to 50 metres. While he accepted that, rather than short-shifting, he could have tapped the rear brake which would have brought his front wheel down immediately, he reiterated that that is not an appropriate course of action, saying (AB 25):
"… you do not tap the rear brake unless it is absolutely direly necessary that you get that front wheel on the deck now because it does not come down in the most beautiful of fashions."
10 Following the appellant's evidence, Mr Hawkins who appeared for the appellant both before the Magistrate and on the appeal, then informed the learned Magistrate that he intended to call as his next witness a Mr R Boyes, a licensed riding instructor with 18 year's experience as an instructor, to give expert evidence about the means of controlling a motor cycle. It was said this would go to the issue whether or not the manner of the appellant's driving was inherently dangerous.
11 His Worship said that he did not see how that could assist him and added (AB 26):
"… I'm concerned not about some other experienced motor cyclist's version of control. I'm concerned about this defendant and his motor cycle and the circumstances that existed on this particular day.
MR HAWKINS: Yes, your Worship, in which case I - -
HIS WORSHIP: So in those circumstances, I don't see how this person could assist me in any way.
MR HAWKINS: Thank you your Worship. In which case there are no further witnesses."
12 Counsel then began to address the learned Magistrate by referring to s 60(1) of the Road Traffic Act, at which point his Worship then said:
(Page 6)
- "I know what the law is and I know the test of what constitutes reckless driving. I'll outline it in my summary so you don't need to quote law to me."
13 Counsel then very briefly continued his address, the substance of which was a submission that it was apparent from the evidence that the appellant's front wheel had come up and he had almost immediately taken steps to bring it back down onto the ground and that in those circumstances he could not be found liable for reckless driving. In his brief address the police prosecutor pointed out the appellant had admitted raising the front wheel between 45 and 60 degrees over a distance of 50 metres and submitted that was deliberate and dangerous, that he is an experienced motor-cycle rider and he knew exactly what he was doing on this occasion.
14 His Worship immediately proceeded to make his findings and having properly directed himself on the onus and burden of proof, then also correctly observed that the offence of reckless driving imports an element of wilfulness which requires the prosecution to prove that the defendant had an actual intention of doing what he did or that he did it deliberately, aware of the risk which was inherent but continuing regardless of whether or not that risk materialised. His Worship then referred to the evidence and noted that most of it was not in dispute. He referred to the appellant's evidence that the rising of the front wheel was accidental in that the front wheel lifted off the road independently of any intention on his part, but his Worship concluded that on an analysis of the evidence and considering the appellant's experience, he did not believe that to be an acceptable proposition. His Worship concluded (AB 28-29):
"That comes down to an analysis of the incident itself. Certainly the presence of other vehicles would, without question, be of importance in determining the level of danger associated with a manoeuvre of this kind but I take into account what the defendant said; that he short shifted rather than tapping the rear brake, so throughout a short shift manoeuvre the power's still on. The vehicle wheel is therefore, in my view on the evidence, likely to remain in the air longer so that it's just a gentle contact with the road rather than the more violent contact if you tap your rear brake.
I've got no doubt, on the evidence, because of the distance involved, because of the speed involved and because of the explanation which the defendant gave: 'I got a bit excited about
(Page 7)
- this successful job interview', that he lifted the front wheel off the ground in a deliberate act by the application of power and the lifting of the wheel as a consequence. And he kept it off the ground throughout the short shifting process in circumstances where it was done to just provide him with a bit of a thrill that he normally gets out of riding motorcycles in other circumstances. But other circumstances don't create dangers for people on what is a major arterial road so I am satisfied that the lifting of the vehicle's front wheel was a deliberate act, that it created a danger without question; an inherent danger.
The danger may not have materialised itself through a combination of circumstances and the defendant's experience but there is no doubt in my mind that to lift the front wheel of a motorcycle off the ground, to keep it there at 45 to 60 degrees or 50 metres is dangerous and therefore the charge is proven beyond reasonable doubt."
15 After further brief submissions from the prosecutor and defence counsel, his Worship imposed a fine of $200 and an immediate (the mandatory minimum) 6 month's licence disqualification.
16 By order made 22 November 2000, Miller J granted the appellant leave to appeal against the decision of the learned Magistrate in refusing to permit counsel for the appellant to lead expert evidence from the witness Boyes, refusing to permit counsel to address him on the law applicable to the complaint and in holding that the appellant's conduct in riding the motor cycle with the front wheel off the ground was a breach of s 60(1) of the Road Traffic Act. The grounds of appeal were:
"(a) The learned Magistrate correctly found that the Police had to prove beyond reasonable doubt each element of the alleged offence, but erred in law and misdirected himself when he failed to consider whether the Police had to prove anything more than that the applicant deliberately raised the front wheel of the motorcycle off the ground; failed to consider whether there was evidence that the fact that the front wheel of the motorcycle ridden by the applicant was off the ground meant that the manner of riding the motorcycle was inherently dangerous or in all the circumstances including the applicant's skill level, dangerous to the public or to any person. The learned Magistrate should have held that the
(Page 8)
- Police had failed to prove that riding a motorcycle with the front wheel off the ground was of itself dangerous or inherently dangerous and should be held that the Police had failed to prove each element of the offence beyond reasonable doubt.
- (b) In light of the evidence led from the applicant regarding the control that he maintained over the motorcycle, his experience in riding motorcycles, and the reason why he did not cause the front wheel to be lowered to the ground by tapping on the rear brake, and in the absence of any evidence to the contrary, the learned Magistrate erred in fact and in law in finding the complaint proven."
17 At the hearing of this appeal on 12 February 2001, Mr Derrick, who appeared for the respondent, conceded that the evidence did not establish that the appellant was driving in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person and that consequently he should not have been convicted of the offence with which he was charged. This concession was properly made, there being no evidence that any member of the public or any person was placed in danger by the manner of the appellant's riding. For driving to be dangerous it must, in reality and not speculatively, be actually or potentially dangerous to the public or another person: see McBride v The Queen (1965) 115 CLR 44 at 49-50; A M Smith v The Queen [1976] WAR 97 at 104; Kaighin v The Queen (1990) 1 WAR 390 at 393-395 and Attree v Randell (1993) 19 MVR 95 at 97. However, the respondent contended that even though the conviction should be quashed, I should substitute for it a conviction on the alternative offence under the same section of driving in an inherently dangerous manner, and so that became the central issue in this appeal.
18 This argument is based on the submission that s 60(1) of the Road Traffic Act creates one offence known as "reckless driving" which may be committed in one or other of two ways. The section provides that:
"Every person who wilfully drives a motor vehicle in a manner (which expression includes speed) that is inherently dangerous or that is, having regard to all the circumstances of the case, dangerous to the public or to any person, commits an offence."
19 This submission is undoubtedly correct. The section creates one offence of "reckless driving". The offence may be proved by establishing
(Page 9)
- that a person wilfully drove in a manner that was inherently dangerous or it may be proved by establishing that the person drove in a manner which, having regard to all the circumstances of the case, was dangerous to the public or to any person. It is to be noted that the element of wilfulness is required to be proved in either circumstance. What this means is that there must be evidence that the defendant (as Murray J put it in Attree v Randell (supra) at 100):
"…adverted to the consequences of or the quality of the driving as being inherently dangerous or dangerous to the public or to any person and did he, so adverting to that, nonetheless recklessly proceed indifferent to those consequences or the quality of the driving in question."
21 As I understand the appellant's submissions on this point, they are in short, that there was insufficient evidence before his Worship to justify a finding that the appellant's manner of riding was inherently dangerous and that in any event it would be unjust to now amend the charge and record a conviction in that respect.
22 It is necessary to begin with a consideration of s 46 and s 47 of the Justices Act. Section 46 provides that:
"46. No objection shall be taken or allowed to any complaint, or to any summons or warrant to apprehend a defendant issued upon any complaint, for any alleged defect therein, in substance or in form, or for any variance between it and the evidence in support thereof, and any such variance shall be amended by order of the justices at the hearing."
23 Section 47 reads:
"47. If any such variance appears to the justices to be such that the defendant has been thereby deceived or mislead, they may, and at the request of the defendant shall, upon such terms as
(Page 10)
- they think fit, adjourn the hearing of the case to some future day, and in the meantime may commit the defendant for his appearance at the time and place to which the hearing is adjourned."
24 Subject to one presently irrelevant difference, those sections are in the same form in which they were considered by Dwyer CJ in Mitchell v Myers (1955) 57 WALR 49. There, after the conclusion of the evidence for the defence, a Magistrate had intimated to the prosecutor that he was not prepared to convict on the offence of dangerous driving charged, but if the prosecution applied to amend the charge to one of negligent driving, he would allow the amendment and convict. That was done. On appeal, Dwyer CJ referred to s 46, s 47 and s 48 of the Justices Act 1902 (WA) and expressed the view that s 46 should be interpreted in much the same way as s 594 of the Criminal Code (WA) which at that time was in the following terms (and which in its present form is essentially to the same effect) (at 52):
"On indictment charging a person with an offence he may be convicted of any offence which is established by the evidence and which is an element or would be involved in the commission of the offence charged in the indictment."
25 His Honour went on to explain this:
"… does not mean that some new offence unrelated to that charged in the complaint can be assumed, can be laid, or can be the subject of amendment; it would be something more than a variance if an offence of a different nature and character could be substituted for that which is set out in the complaint or is the subject of the charge before the Justices; but it does extend to alleging what I might call a cognate offence which is established by the evidence, that is one similar in some way to that charged, or one which would be a constituent of the actual complaint which has been laid; and by a constituent I mean what the Code calls an element or something of the sort, an ingredient involved in the complaint laid, and in that respect almost necessarily a complaint of a lesser gravity than that charged. There are many instances of this set out verbatim in the Code.
So I come to the conclusion that the Justices may amend a complaint if there is something of the sort mentioned which in
(Page 11)
- their opinion is established by the evidence, may alter the complaint to impute another offence which is so established if it is of a similarity in its nature and character to the original complaint.
The section goes on to say, 'Any such variance shall be amended by order of the Justices.' I do not think that that means that it is the obligation of the Justices to make an amendment of the sort of their own volition. I say that because the question has been referred to during the argument. It is not desirable that the Justices should adopt the role of prosecutors; that is something I think properly to be regarded as outside their judicial functions as Justices; but where the evidence has established to their satisfaction that there has been commission of an offence, and a commission of an offence of the type I have already mentioned, then it is properly within their power and within their discretion to intimate that they have come to such a conclusion, and leave it to the prosecutor to apply for such amendment as is desired. The Justices, I think, will have done their duty when they go so far as that."
26 Dwyer CJ went on to hold that the amendment does not have to be made before the defence opens; it can be made at any time - indeed, the necessity for amendment arising from a variance between the evidence and the offence charged may not become apparent until all the evidence is heard. But then s 47 comes into play: the Justices must give the defendant an opportunity to consider his defence in light of the amendment and hence to be heard at some future time. As his Honour expressed it (at 53 ibid):
"It would be wrong if the Justices made any attempt to compel the defendant to deal immediately with the defence to a complaint which had just arisen."
27 I would consider an amendment of a charge of reckless driving under s 60(1) of the Road Traffic Act by wilfully driving in a manner dangerous to the public or any person to one of a charge under the same section, of driving in an inherently dangerous manner, because the evidence failed to show the former, but did establish the latter, to fall entirely aptly within the terms and legislative intent of s 46 of the Justices Act.
28 Of course, the fact is that no such application to amend was made to the learned Magistrate and no such amendment was made.
(Page 12)
29 That necessarily brings me to a consideration of s 199 of the Justices Act.
30 I am not prepared to accede to the respondent's submission that I amend the charge to one of inherently dangerous driving and to convict the appellant of that. The learned Magistrate could not have done that without, if the appellant had requested, adjourning the hearing to enable the appellant to call further evidence, and I consider it would be entirely inappropriate for me to afford the appellant that opportunity on this appeal with the result that I would end up having to decide the issue partly on the transcript of the evidence before the Court below and partly on the evidence given before me.
31 The appellant's other two grounds of appeal also have a bearing on this. The appellant did seek to call Boyes, an expert witness whose testimony would have gone directly to the issue whether the appellant's manner of driving was in fact dangerous. I appreciate that the transcript shows the appellant's counsel indicated he proposed to call Boyes but in the face of the Magistrate's remarks that he did not see how the witness could help, counsel simply did not press the matter. His Worship did not expressly "refuse to permit" counsel to call the witness. Nonetheless, although counsel could have at least formally sought to call the witness, I acknowledge there are sound practical forensic reasons why one might not do so. In short, I accept that in the circumstances there was effectively a refusal by his Worship to hear the witness. The appellant was entitled to call such witnesses as he wished who could give relevant and admissible evidence. The evidence of Boyes would have been relevant and admissible. The Magistrate's refusal to allow that led to a miscarriage of justice.
32 The test of what amounts to dangerous driving is objective. Unlike the second limb of s 60(1) of the Road Traffic Act, which requires proof of some actual or potential danger to the public or a person, the first limb will be established if the court is satisfied the driving of itself is essentially dangerous so as to amount to recklessness whether or not any person is endangered: per Scott J in Walker v Osborne (1955) 22 MVR 363. The element of recklessness is of course an additional element required under s 60(1) which is not required for the offence of dangerous driving under s 61 of the Road Traffic Act, and involves an appreciation of the danger and a deliberate or reckless disregard of it, as explained by Murray J, in Attree v Randell (supra).
(Page 13)
33 His Worship made no finding on the element of wilfulness. Furthermore, although he found the appellant's driving with the front wheel raised to have been deliberate, the effect of the appellant's evidence was that he was a very experienced rider, riding in that way was not dangerous and that he was in control of his machine at all times.
34 His Worship did expressly find that the manner of driving (AB 29):
"… created a danger without question; an inherent danger."
35 In this respect he appears to have been confusing the two limbs of s 60(1) and basing his decision on the limb which had not been charged. That misconception may have been avoided had his Worship allowed counsel to make his submissions on the law, as counsel had sought to do.
36 Quite apart from that misconception, I think there is substance in the appellant's complaint that his Worship refused to allow his counsel to address him on the law relating to the complaint. I would not necessarily go so far as to hold that a defendant always has a right to address on the law in a Court of Petty Sessions, but I consider that in the circumstances of this case, which did involve questions of law and where the appellant's counsel expressly indicated he wished to do so, his Worship's refusal to allow that resulted in a miscarriage of justice: see Allen v Gittos (1995) 13 WAR 560.
37 Furthermore, I accept the submission that as it stands the evidence before his Worship could not sustain a finding beyond reasonable doubt in all the circumstances, that the appellant's driving was inherently dangerous; but it would be inappropriate for me on this appeal to amend the charge and in effect take over the hearing of the evidence.
38 There is however another option under s 199 of the Justices Act.
39 Section 199(1)(d) authorises this Court to remit the case for rehearing by the Magistrate or some other Magistrate with or without a direction. I have considered whether I should remit the matter to the learned Magistrate with a direction that he amend the complaint to substitute a charge of reckless driving by driving in an inherently dangerous manner and for further hearing, but have come to the conclusion that would not be appropriate.
40 The respondent concedes the conviction must be quashed because the evidence does not support a finding of the element of danger to the public or any person.
(Page 14)
41 There was no application made to the Magistrate to amend the complaint to substitute a charge of reckless driving by driving in an inherently dangerous manner. Even if there had been, the evidence before his Worship could not sustain a finding that the driving was inherently dangerous. For me to remit the matter to the Magistrate with a direction that the charge be amended and further evidence heard, would be giving the prosecution an opportunity to bring a different case on different evidence when it has failed to make out the case it chose to bring.
42 The appeal must be allowed; the conviction will be quashed; the orders for a fine and licence disqualification set aside and judgment of not guilty will be substituted.
6
2
2