Hughes v Police - [2009] SASC 57

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HUGHES v POLICE
[2009] SASC 57
Judgment of The Honourable Justice White
4 March 2009
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN MANNER DANGEROUS TO PUBLIC
Appeal against conviction - appellant convicted by a Magistrate of driving in a manner which was dangerous to the public - appellant's driving occurred in the course of his duties as a police officer - whether police officers driving in the course of their duties are exempt from the legislative provisions prohibiting driving in a manner dangerous to the public - consideration of matters relevant to the offence of driving in a manner dangerous to the public by police officers in police vehicles.
Held: Appellant correctly convicted - appeal dismissed.
Road Traffic Act 1961 (SA) s 40; s 45; s 46; s 80; Criminal Law Consolidation Act 1935 (SA) s 19A(1); Police Act 1998 (SA) s 5, s 11; Police Regulations 1999 (SA) reg 10; Road Traffic Act 1934 (SA) s 156A, s 121; Australian Road Rules r 305; Road Traffic (Amendment Act No. 2) 1941 (SA) s 15, referred to.
R v Coventry (1938) 59 CLR 633; Kroon v The Queen (1990) 55 SASR 476, applied.
R v Mayne (1975) 11 SASR 583; South Australian Ambulance Transport Incorporated v Wahlheim (1948) 77 CLR 215; Tester v Police (1998) 71 SASR 251; Papps v Police [1999] SASC 545; Police v Majchrak [2004] SASC 34; (2004) 232 LSJS 213; and on leave to appeal, [2004] SASC 251; Morgan v Pearson (1979) 22 SASR 5; Proudman v Dayman (1941) 67 CLR 536, discussed.
Jiminez v The Queen (1992) 173 CLR 572; Bayley v Police [2007] SASC 411, (2007) 99 SASR 413; R v Duncan (1975) 11 SASR 583 (note); Pope v Hall (1982) 30 SASR 78; R v Evans (1963) 1 QB 412; R v Webb [1986] 2 Qd R 446, considered.

HUGHES v POLICE
[2009] SASC 57
Magistrates Appeal

WHITE J: The appellant was formerly a constable in the South Australian Police. By reason of the manner of his driving of a police vehicle in the course of his duties on 16 November 2008, a Magistrate found him guilty of the offence of driving in a manner which was dangerous to the public, contrary to s 46 of the Road Traffic Act 1961 (SA) (RTA). He now appeals against that conviction. The appeal raises issues about the inter-relationship between the operation of s 46(1) of the RTA, on the one hand, and the performance of their duties by the police, on the other.
Background Circumstances
The driving constituting the offence occurred on Oxenham Drive at Elizabeth. The Magistrate succinctly summarised the circumstances in which the appellant came to be driving on Oxenham Drive at the time as follows:
The defendant was a member of South Australia Police and was on duty when the driving that led to these charges occurred. At about 2 pm on Wednesday 16 November 2005, the defendant was performing solo traffic duties, driving an unmarked police vehicle on Elizabeth Way, Elizabeth. At this time he recognised a Yamaha motorcycle because he had stopped this motorcycle earlier in the day and issued the rider, Mr Adam McNamara, with an expiation notice for the offence of riding without an appropriate licence. The defendant positioned his police vehicle to the rear of the motorcycle and followed the motorcycle as it executed a U-turn on Elizabeth Way before turning into Oxenham Drive, which runs alongside the Elizabeth Shopping Centre. The speed limit on Oxenham Drive is 20 kilometres per hour, which is announced on signposts erected in accordance with the Australian Road Rules. The defendant followed Mr McNamara along Oxenham Drive, Frobisher Road and then back onto Elizabeth Way. Mr McNamara lost control of his motorcycle on Elizabeth Way and collided with the median strip and a road sign. Mr McNamara died as a result of injuries he sustained. The defendant believed on reasonable grounds that Mr McNamara was committing an offence and his intent in engaging in the pursuit was to stop or apprehend Mr McNamara. During the pursuit the defendant’s vehicle had flashing lights and sirens operating. [Evidence references omitted]
As noted by the Magistrate, Oxenham Drive runs alongside the Elizabeth Shopping Centre, a major suburban shopping complex. The Centre contains numerous department stores, supermarkets, speciality shops, a food court, and both Government and business offices. The shopping centre complex is surrounded on all sides by an extensive car-park. Oxenham Drive is on the northern side of the centre and separates the complex from the northern car-park.
The prosecution of the appellant had the unusual feature that the whole of his driving which was the subject of the charge was recorded on film by a security camera at the Shopping Centre. At relevant times the camera was fixed pointing in a westerly direction along Oxenham Drive. The security film was tendered at the trial. The Magistrate found that the video footage recorded the progress of the motorcyclist and of the appellant over a distance of 202.63 metres on Oxenham Drive. The prosecution case related to the appellant’s manner of driving over that distance of 202.63 metres only.
The Magistrate described relevant features of Oxenham Drive and its location in the following two paragraphs:
Oxenham Drive runs east west through the centre linking Elizabeth Way and Frobisher Road, and provides one lane for traffic in each direction. On each side of the road are raised footpaths. The shopping centre is on the southern side of the road and a raised footpath on this side of the road leads to an entrance to a department store and two arcade entrances. On the same side of the road are two taxi ranks, a bus stop and laneways to a Receiving Depot and a loading area at the rear of a supermarket. At the western extremity of the road are further laneways branching north and south for vehicular access to car parking. On the northern side of the road is a Bus Interchange providing all public transport to and from the centre, including a link to the Elizabeth Railway Station. The Bus Interchange comprises many bus stops located on the raised footpath on the northern side, and bus shelters provide undercover seating for at least 100 commuters. Some of these bus shelters are shown in the video footage. The combination of pedestrian traffic, public transport, taxis, delivery trucks and motor vehicles make Oxenham Drive the busiest thoroughfare in the centre. The video footage shows a steady stream of traffic and pedestrians at the relevant time.
The road provides two pedestrian crossings. At the western end there is a pedestrian crossing (the western crossing) for pedestrians to move between a shopping arcade and the Bus Interchange or a car park behind the Interchange. Immediately to the west of the western crossing the road widens as it leads to laneways to the left and right to provide vehicular access to car parks. At this point the road is wider than that required for a lane for traffic travelling in each direction and the western crossing has concrete islands in the middle of the road, with a pathway between them, to provide protection to those pedestrians who may wish to pause to check traffic. Near the eastern end of the road is a zebra crossing providing a pedestrian crossing between a shopping arcade entrance and the Bus Interchange or car park behind the Interchange. [Evidence references omitted]
My viewing of the video footage on appeal confirms the extensive use of Oxenham Drive by both vehicular and pedestrian traffic at the relevant time. The heavy traffic explains the 20kph speed limit which was applicable.
The video footage shows that the appellant’s vehicle was travelling in an easterly direction in pursuit of the motorcyclist. When first seen, the motorcyclist was behind the bus travelling westerly on Oxenham Drive. It was turning to its left so as to follow a bend in the road. The motorcycle accelerated sharply, mounted the northern kerb (ie, next to the near side of the bus) and then overtook the bus. It then veered back to the centre of Oxenham Drive whilst accelerating rapidly. The Magistrate accepted calculations of speed made by an experienced police officer in the Crash Reconstruction Unit of the South Australian Police. Those calculations indicated that when the motorcycle was behind the bus it was travelling at a speed of at least 30.2kph but, by the time it disappeared from the camera’s view, at a speed of at least 94.6kph.
When first seen in the video footage, the appellant’s vehicle was travelling immediately behind the same bus. Its flashing lights were operating. The appellant overtook the bus as it rounded the bend on Oxenham Drive. To do this the appellant had to veer partially onto his incorrect side of the road. This involved straddling the centre white dividing line, and thereby passing very closely to a car travelling in a westerly direction on Oxenham Drive. Thereafter the appellant pursued the motorcyclist, but it was only just before passing out of the camera’s view that he returned his vehicle to the correct side of the road.
At one stage the appellant overtook a taxi which had slowed to permit two pedestrians to complete their passage over the zebra crossing. To do this, the appellant moved his vehicle wholly onto the incorrect side of the road. It is apparent that, at this time, a car travelling in a westerly direction had to veer into a taxi rank on the southern side of Oxenham Drive in order to avoid the appellant’s path of travel.
The Magistrate accepted that when first seen on the video footage, the appellant was travelling at a speed of at least 53kph, when behind the bus and immediately before overtaking it, he was travelling at a speed of at least 30.2kph, and, immediately before moving out of the camera’s view, at a speed of at least 87.4kph. In other words, the appellant was travelling at a speed which was considerably in excess of the applicable speed limit of 20kpm.
Section 46 of the RTA
Subsections 46(1) and (2) of the RTA provide as follows:
(1)     A person must not drive a vehicle recklessly or at a speed or in a manner which is dangerous to the public.
Maximum penalty: Imprisonment for 2 years.
(2)     In considering whether an offence has been committed under this section, the court must have regard to—
(a)the nature, condition and use of the road on which the offence is alleged to have been committed; and
(b)     the amount of traffic on the road at the time of the offence; and
(c)the amount of traffic which might reasonably be expected to enter the road from other roads and places; and
(d)all other relevant circumstances, whether of the same nature as those mentioned or not.
Putting to one side issues such as consciousness and voluntariness,[1] and defences such as honest and reasonable mistake of fact,[2] necessity[3] and duress, there are two elements to a s 46(1) offence of driving a vehicle in a manner dangerous to the public: it must be established that the accused was driving a vehicle and that he or she was doing so in a manner which was dangerous to the public.
[1]    Kroon v The Queen (1990) 55 SASR 476.
[2]    R v Coventry (1938) 59 CLR 633 at 638; Jiminez v The Queen (1992) 173 CLR 572 at 582-4.
[3]    Bayley v Police [2007] SASC 411; (2007) 99 SASR 413.
Section 46(1) of the RTA has a counterpart in s19A of the Criminal Law Consolidation Act 1935 (SA) (CLCA). Section 19A(1) provides:
(1) A person who—
(a)drives a vehicle or operates a vessel in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to the public; and
(b)by that culpable negligence, recklessness or other conduct, causes the death of another,
is guilty of an indictable offence.
……
It can be seen that the driving of a vehicle in a manner which is dangerous to the public is one way in which each of the s 46(1) and s 19A(1) offences may be committed.
The authorities indicate that the question of whether particular driving is to be characterised as “driving in a manner which is dangerous to the public” is to be determined objectively. It is a question of whether a reasonable person would regard the accused’s manner of driving as involving a risk of injury to other road users which exceeds the risks arising from the ordinary incidents of road use. In R v Coventry[4] a majority in the High Court said of a predecessor provision to s 19A of the CLCA:
The jury is to determine, not whether the accused was in fact, as a matter of psychology, indifferent or not to the public safety, but whether he has driven in a manner which was dangerous to the public. The standard is an objective standard, “impersonal and universal, fixed in relation to the safety of others users of the highway”…. The standard is impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles.
No doubt the language of the section does not exclude a defence of mistake of fact on reasonable grounds or of involuntariness (for example, interference by another person with the driving of the car), and perhaps there may be other exceptional excuses, based on special facts, to which a state of mind may not be immaterial. But, speaking generally, the expression “driving at a speed, or in a manner, which is dangerous to the public” describes the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence. It is not desirable to attempt to make an exhaustive catalogue of possible defences, and what we have said is sufficient to deal with the present case.[5] [Emphasis added]
[4] (1938) 59 CLR 633.
[5] Ibid at 637 – 8.
In R v Mayne[6] Bray CJ referred with approval to the summing up of Napier CJ in R v Duncan (attached as a note to Mayne). In the course of distinguishing the offence of driving without due care[7] from the offence of driving in a manner dangerous to the public s 46(1), Napier CJ said:
If it is the sort of thing that any of us might be able to do – although we might be sorry for it afterwards – you may regard it as driving without due care and attention, but, nevertheless, as an ordinary – and in one sense a necessary – risk of any road on which vehicles are driven by ordinary people like ourselves – people who mean well, but sometimes make mistakes. But over and above that, it must be a matter of common knowledge that there are some people who – at times – impose on other users of the road a risk which is by no means a fair or necessary risk of the road. They drive in a manner which imposes upon other users of the road a risk which any reasonable person, in the situation of the driver, ought to recognise as a real danger to the public. That, gentleman, is what I think this information means, when it charges the accused with driving in a manner dangerous to the public. It refers to the sort of risk which is in no sense an ordinary or necessary risk of the road, and to a manner of driving which is treated as a fairly serious crime.[8] [Emphasis in original]
[6] (1975) 11 SASR 583.
[7] Now s 45 of the RTA.
[8] (1975) 11 SASR 583 at 593 – 4.
In the quoted passage, Napier CJ emphasised that driving in a manner which is dangerous to the public involves a manner of driving which imposes upon other users of the road a risk which any reasonable person in the situation of the driver ought to recognise constitutes a real danger to the public.
In Kroon v The Queen[9] King CJ expressed the objective test in the following manner:
It is well established that the question whether a vehicle is driven in a manner dangerous to the public for the purposes of the offences created by s19A of the Criminal Law Consolidation Act 1935 must be answered by reference to an objective standard and irrespective of whether the accused intended to drive dangerously or appreciated that he was doing so:…The character of the driving is tested not by reference to whether the danger to the public involved in the driving was appreciated by the accused but to whether he ought to have appreciated the danger; or, to put it another way, whether a reasonable person in the situation of the accused would have appreciated the danger…..[10]
[9] (1990) 55 SASR 476.
[10] Ibid at 477 – 8.
Also in Kroon, White J said:
It would undermine the policy of the Road Traffic Act 1961 and other provisions aimed at encouraging safety on the roads, in my opinion, if the Duncan test were to be allowed to degenerate from a purely objective test to a watered down test in which the jury are permitted to take into account the accused’s personal characteristics such as age, driving experience, lack of education, mental abilities, poor eyesight, personality defects and the like. That is not the Duncan test.
Under that test “any reasonable person” means any ordinarily competent, alert and careful driver without idiosyncratic characteristics or physical or mental defects.[11] [Emphasis in original]
[11] Ibid at 487.
Appellant’s Evidence
As at 16 November 2005, the appellant had been a police officer for approximately 5 years and had held a driver’s licence for approximately 17 years. In his training as a police officer he had completed a two week driving course, part of which involved “on-road car familiarisation” and part of which involved training in high speed driving at the Mallala Raceway. The appellant held driving permits described as “1A” and “1B”. The evidence concerning the effect of these permits was somewhat sparse. The appellant said that the 1A permit authorised him to drive police vehicles at speeds which were up to 20kph over the applicable speed limit and that the 1B permit was a “pursuit ticket”.
The appellant said that he decided to stop the motorcyclist because he believed that he was the same person he had detected earlier that day riding a motorcycle without an appropriate licence. He intended that the motorcyclist should stop at a convenient location on Oxenham Drive. He activated his flashing lights and, momentarily, his siren to signal to the motorcyclist that he should stop. When he appreciated that the motorcyclist was not going to stop, and later that he was in fact accelerating away, the appellant said that he made a series of risk assessments and reassessments. These assessments concerned the place at which the motorcyclist could stop, the appellant’s field of vision, the speed of the motorcyclist, observations of road features and observations of vehicle and pedestrian traffic, and of his ability to pursue the motorcyclist safely. He gave what the Magistrate described as precise evidence of what he was thinking when he overtook the bus, straddled the centre lane of Oxenham Drive, and overtook the taxi at the pedestrian crossing. The appellant explained his straddling of the centre white line by reference to his training that in a pursuit it was better to be close to the centre of the road. This position gave him a better view and it also enabled the oncoming vehicles to see his flashing lights unobscured by the traffic ahead of him. He said that he had been concerned while driving about the risks to other traffic and pedestrians. The appellant also said that he believed that his driving on Oxenham Drive was in conformity with a General Order issued by the Commissioner of Police concerning the circumstances in which police officers may engage in high speed pursuit driving.
The Magistrate regarded much of the appellant’s evidence as being reconstruction, in particular, his evidence concerning his process of thinking while on Oxenham Drive. Contrary to the appellant’s submission on appeal, it is plain that the Magistrate did not regard his evidence as reliable. The impression of reconstruction is confirmed by my own reading of the transcript of the evidence taken at the trial.
Magistrate’s Conclusion

At the trial, and again on the appeal, the appellant conceded that his manner of driving, if committed by a citizen without any legal authority or without any legislative exemption, would have constituted driving in a manner which was dangerous to the public, within the meaning of s 46(1). That concession was plainly correct. The video footage illustrates clearly that the driving by the appellant did involve “a wholly unreasonable and unwarranted danger to the life, or limb, or both, of other road users.”[12]
[12] Pope v Hall (1982) 30 SASR 78 at 79.
The appellant submitted to the Magistrate, however, that he should not be convicted of the s 46(1) offence (or for that matter of the alternative and lesser offence of driving without due care) because, at the relevant time, he was an on‑duty police officer acting in the execution of his duty. The Magistrate rejected that submission and several submissions which were ancillary to it. I will refer to these shortly because most were repeated, elaborated or revised, in one way or another, on the appeal.
The Magistrate found the charge proved having regard to the appellant’s speed from the time that he overtook the bus, his proximity to the vehicle travelling in a westerly direction which veered into a taxi rank to avoid his path, the considerable vehicular and pedestrian traffic in the near vicinity, the risk to such traffic and pedestrians which the appellant’s sudden acceleration and changes of direction involved, the limited ability of the appellant to manoeuvre his vehicle because of the congestion of traffic and pedestrians, the road speed limit of 20kph, and the absence of allowance for errors by others.[13]
[13] Police v Hughes [2009] SAMC 7 at [46] – [53].
Submissions on Appeal
The appellant made a number of submissions in the alternative on the appeal. Many of them had their basis in the general responsibilities and duties of police officers and, in particular, in a General Order issued by the Commissioner of Police to all police officers.
The appellant referred to s 5 of the Police Act 1998 (SA) which provides that the purpose of the South Australian Police is “to reassure and protect the community in relation to crime and disorder by the provision of services” to, amongst other things, uphold the law, prevent crime and to regulate road use and prevent vehicle collisions. Section 11 of the Police Act authorises the Commissioner of Police to make binding general or special orders, not inconsistent with the Act itself, for the control and management of the police. Section 11(2) provides that the orders may concern, amongst other things, the various duties to be performed, the manner in which or the time and place at which they are to be performed, and any other matter which the Commissioner considers relevant to the control and management of the police.
Next the appellant referred to reg 10(a) of the Police Regulations 1999 which provides:
Every member of S.A. Police must use all lawful means in his or her power –
(a)to uphold the law, preserve the peace, prevent crime and carry out the other functions of S.A. Police.
Finally, the appellant referred to a General Order which it was agreed had been issued by the Commissioner some time before November 2005 entitled “Operational safety – urgent duty driving.” I will refer to the contents of this document shortly.
The appellant submitted first that the effect of reg 10 of the Police Regulations and of the General Order (with its legislative authority in s 11 of the Police Act) bound him, at the pain of disciplinary action, to pursue the motorcyclist in the manner shown in the video footage. The implications of an acceptance of this contention were not developed in the submissions. Such an acceptance would seem to require, at the least, a resolution of conflicting statutory obligations.
Next, the appellant submitted that any factor which influences the actual or potential danger to the public of the driving in question is a relevant circumstance to be considered under s 46(2)(d). This meant that even if he was not bound to drive in the manner which he had, the circumstance that he was a police officer trained in driving at high speed, and that he was driving consistently with the standard required by the Commissioner’s General Order were “other relevant circumstances” within the meaning of s 46(2)(d) of the RTA which had to be considered, and that the Magistrate had failed to do so.
Next, the appellant submitted that his status and responsibilities as a police officer, and his attempt to discharge his duties, should be recognised as comprising an “exceptional excuse” for the offence of driving in a manner dangerous to the public. In this submission, the appellant sought to develop the notion of “exceptional excuse” mentioned by the majority in R v Coventry in the second paragraph of the passage quoted earlier in these reasons.
Finally, the appellant made a submission which was founded on the direction of Napier CJ in R v Duncan (quoted earlier) that driving in a manner dangerous is driving which goes beyond an “ordinary or necessary risk of the road”. The submission seemed to be that the nature of a police officer’s duties and, in particular, the possibility of high speed driving by police officers in the execution of their duties (as recognised by the General Order), was an ordinary or necessary risk of the road. It was submitted that the appellant’s driving should have been characterised by the Magistrate in this way.
Consideration
The submissions summarised above face a number of difficulties.
The first difficulty arises from the impersonal and universal nature of the objective standard by which the character of the driving is to be determined. As noted earlier, the majority in R v Coventry said:
The standard is impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles.[14] [Emphasis added]
[14] (1938) 59 CLR 633 at 638.
The standard by which the issue of dangerous of driving is to be determined is applicable to all drivers. The law has not recognised exceptions from that standard for those who hold particular offices or those in any particular occupational group and, in particular, has not done so for police officers. Further, as pointed out by White J in Kroon the objective test does not permit account to be taken of a driver’s personal characteristics, such as age or driving experience.[15]
[15] Kroon v The Queen (1991) 55 SASR 476 at 487.
The current legislative provisions and their history tell strongly against police officers being in some special category for the purposes of s 46. The Australian Road Rules (ARR) came into operation on 1 December 1999.[16] Rule 305 of the ARR provides that a provision of the ARR does not apply to the driver of a police vehicle in specified circumstances. However r 305 refers only to provisions of the ARR themselves and does not provide any exemption for the police from provisions in the RTA such as s 46. In this respect, r 305 continues the position which has applied in South Australia since at least 1941.
[16] The Australian Road Rules were made in South Australia by the Governor under s 80 of the RTA.
Prior to its repeal on 1 December 1999, s 40 of the RTA (the predecessor to r 305) made a number of provisions of the RTA inapplicable in specified circumstances to fire brigade appliances, ambulances, police vehicles and certain other vehicles. However, the exemptions under s 40 did not include s 46. The predecessor of s 40 was s 156A of the Road Traffic Act 1934 (SA) (RTA 1934). Section 156A was inserted into the RTA 1934 in 1941.[17] It exempted fire brigade vehicles, ambulances and police vehicles, when in use in the course of duty, from specified provisions of the RTA. It did not however exempt these vehicles from s 121 of the RTA 1934, the predecessor provision to s 46.
[17] Road Traffic Act (Amendment Act No. 2) 1941 (SA) s15.
There is accordingly a long a history of police officers being exempted in certain circumstances from the need to comply with certain provisions of the RTA and with certain of the Road Rules. However, the police have never been exempted from the offence of driving a vehicle in a manner which is dangerous to the public. Although Parliament has specifically addressed the question of the exemptions which are appropriate for police and other emergency service vehicles, it has not considered that an exemption from s 46 is appropriate.
The legislative policy evidenced in the provisions just referred to has been recognised in the authorities. In the South Australian Ambulance Transport Incorporated v Wahlheim[18] Latham CJ noted that ambulance drivers were not exempt from s 121 of the RTA 1934:
The driver of the ambulance was subject to s.120 of the Act – not to drive without due care or attention or reasonable consideration for other road users; and to s.121 – not to drive recklessly or at a speed or in a manner dangerous to the public.[19]
[18] (1948) 77 CLR 215.
[19] Ibid at 220.
In Tester v Police[20] the Full Court considered whether a police officer who exceeded the speed limit while travelling to obtain witness statements was then “in the execution of duty” so as to come within the then existing s 40 exemption. Duggan J, with whom Williams and Bleby JJ agreed, said:
The provisions which are the subject of exemptions include those relating to speed limits and some other traffic laws, but there is no exemption for careless or dangerous driving.[21]
[20] (1998) 71 SASR 251.
[21] Ibid at 253.
In each of Papps v Police[22] and Police v Majchrak[23] attempts were made to have prosecution evidence excluded in the exercise of the Bunning v Cross discretion on the claimed grounds that the reporting police officer had been able to obtain the evidence only by himself committing the offence of driving in a manner which was dangerous to the public, contrary to s 46 of the RTA. Although those attempts failed, it was either acknowledged, or common ground, in each case that s 46 was applicable to police officers when driving police vehicles in the execution of their duties.
[22] [1999] SASC 545.
[23] [2004] SASC 34; (2004) 232 LSJS 213 (and on the application for leave to appeal, [2004] SASC 251).
The appellant submitted that the application of s 46 to police officers acting in the execution of their duty had not been at the heart of the issues arising in Tester, Papps and Majchrak. That may have been so. Nevertheless the statement of Duggan J in Tester quoted earlier, and of Prior J in Papps, [24] reflect appropriately in my opinion the effect of the RTA.
[24] [1999] SASC 545 at [27].
Accordingly, neither the appellant’s status as a police officer, nor the fact that he was driving a police vehicle, nor the fact that he was purporting to act in the execution of his duties, exempted him from s 46 of the RTA.
The submission that the appellant was bound, under the pain of disciplinary action, to drive in the manner which he did on 16 November 2005 cannot be upheld. None of the obligations arising under s 11 of the Police Act, or under reg 10 of the Police Regulations, or under the Commissioner’s General Order had that effect. On its own terms reg 10(a) requires only the use by police officers of “lawful means” in the carrying out of their duties. Further, the appellant was unable to point to any provision in the General Order which required him to adopt the means of driving which he had.
The subject matter of the Commissioner’s General Order on which the appellant relied is “urgent duty driving”. The opening paragraph of the General Order identifies urgent duty driving in the following way:
When you use the exemption provided in Rule 305 of the Australian Road Rules in responding to taskings or driving in a manner which, when compared with normal risks, substantially increases the risk of injury to police, the public or suspects, or of damage to property, the driving will be considered urgent duty driving.
This description of urgent duty driving commences with a reference to use of the exemption in r 305 of the ARR in particular circumstances. As already seen, r 305 does not provide an exemption for police from the prohibition on driving in a manner dangerous to the public contained in s 46 of the RTA. It may accordingly be said that the subject of the General Order is driving which, but for the exemption in r 305, would infringe one of the rules in the ARR, but which nevertheless would fall short of driving in a manner dangerous to the public within the meaning of s 46. In other words, it may be said that the General Order does not, on its own terms, authorise, or purport to authorise, any driving in a manner which is dangerous to the public at all.
In any event, rather than requiring, or even encouraging dangerous driving, the General Order seeks in a number of ways to limit the circumstances in which police officers may engage in urgent duty driving, and to regulate the manner of driving when they do so, with a view to ensuring that it is performed safely. This is evident in the following paragraphs:
In all urgent duty driving situations SAPOL’s operational safety philosophy and principals must be applied. Safety must be the primary concern ahead of capture.
Urgent duty driving is an area of great potential risk for loss of life, injury or damage to property. In all urgent duty driving situations:
·The urgent duty driving should not be disproportionate to the circumstances
·Risk must be continually assessed in terms of the potential danger to all and the risk of damage to property
·Police have a duty of care not to endanger other road users and must exercise an extreme level of awareness and caution
·Supervisors must exercise effective command and control
·Occupational Health, Safety and Welfare requirements are to be met
·The driver of the vehicle must be responsible for their actions
·The senior member may be held accountable for the actions of the driver
·You should consider helicopter assistance as the preferred option.
The General Order then provides for a supervising police officer to control and monitor urgent duty driving, including pursuits, while it is taking place. Under the heading of “Policy”the General Order provides:
Urgent duty driving may only be undertaken:
·In response to an emergency involving obvious danger to human life or
·When the seriousness of the crime warrants it.
In all cases the known reasons for the urgent duty driving must justify the risk involved.
The General Order identifies the factors which must be considered in relation to the institution and continuation of urgent duty driving.
Before commencing, and while engaged, in urgent duty driving the senior member and the driver must consider:
·The seriousness of the emergency or crime
·The degree of risk to the lives or property of police, the public or the suspect/s
·Whether the driver holds the appropriate driving permit
·Whether immediate apprehension is necessary (if in pursuit)
·The availability of other police assistance
·The capability and type of police vehicle or forthcoming assistance
·The practicability of using other stopping devices such as road spikes
·Environment and climatic conditions
·Police driver competence and local knowledge.
If the urgent duty driving involves a pursuit it must be terminated when:
·The necessity to immediately apprehend is outweighed by obvious dangers to police , the public or the suspects if the pursuit is continued or
·The apprehension can be safely effected later (e.g. the identity of the owner/occupants of the vehicle is known)
·Instructed by the supervisor/shift manager, State Duty Officer/Communications Senior Sergeant or nominee.
Police officers who do engage in urgent duty driving involving a pursuit must inform Police Communications of matters relating to the pursuit including:
·Initial reason for pursuit
·Traffic and road conditions
·Suspect vehicle’s details
·That all of your vehicle’s warning equipment has been activated
·The progress of the incident, speeds involved and manner of driving of the suspect vehicle
·Type of police vehicle involved and, if a solo patrol, the need to be replaced as soon as possible by a two member crew in a marked police vehicle.
When police do engage in urgent duty driving they must, unless there are exceptional circumstances, activate their sirens, flashing lights and headlights. Unmarked police vehicles (such as that which the appellant was driving on 16 November 2005) are not to be used in urgent duty driving “unless exceptional circumstances exist.”
Considered overall, the General Order is a binding protocol issued by the Commissioner of Police concerning urgent duty driving. Its effect is to ensure, so far as practicable, that such driving is carried out without unnecessary risk to the public or to the police themselves. It makes safety, and not capture, the primary concern in all cases of urgent duty driving.
When regard is had to the terms of the General Order, the submission that it, with the legislative sanction of s 11 of the Police Act and reg 10 of the Police Regulations, required the appellant to drive in the manner which he did on 16 November 2005 is plainly unsustainable.
The appellant’s alternative submission to the effect that compliance with the Commissioner’s General Order had the consequence that he could not be guilty of a s 46 offence also faces difficulties. It was not open to the Commissioner to modify the operation of s 46 by issuing a General Order. Although the General Orders are binding on members of the SA Police, they do not have any wider status or authority. They are not subordinate legislation to which the Subordinate Legislation Act 1978 (SA) applies.[25] The Commissioner could not alter the standard by which driving is to be assessed as dangerous which has been established for the purposes of s 46 by binding decisions of the Full Court of this State and of the High Court. (I add that on my reading of the General Order concerning urgent duty driving it does not appear to me that the Commissioner has purported to make such an alteration).
[25] Police Act 1998 (SA) s 11(3).
An enquiry as to whether particular driving by a police officer did, or did not meet a standard required by the Commissioner would, in my opinion, introduce a false issue into the prosecution of a s 46 charge. As the authorities indicate, what is to be assessed (absent issues such as consciousness, voluntariness, mistake or necessity) is “the actual behaviour of the driver[26],” ie, the manner of driving. Compliance, or otherwise, with an employer’s instruction concerning the manner of driving is immaterial to that assessment.
[26] R v Coventry (1938) 59 CLR 633 at 638.
The “other relevant circumstances” to which s 46(2)(d) refers are matters which bear upon the dangerousness of the driving, ie, the risk which it involves of injury or harm to members of the public. Those circumstances do not (when there are no issues such as consciousness, voluntariness, mistakes etc) include matters relating to the driver’s subjective state of mind, or belief as to the justification for the driving, or the purpose sought to be achieved by the driving. If the driving is dangerous in the relevant sense, it has that character whether or not engaged in for a socially useful purpose and whether or not there exists some justification for it. I add that the purpose or justification for the driving may of course be relevant to a defence of necessity or duress, to sentence, and may also be relevant to whether a prosecution should be instituted at all. [27]
[27] R v Evans (1963) 1 QB 412 at 418; R v Webb [1986] 2 Qd R 446 at 449.

With the possible exception of the plea of mistake raised by the appellant, to which further reference will be made shortly, any belief which the appellant may have held that his driving was consistent with the Commissioner’s General Order was immaterial. The Magistrate was correct in my opinion in focussing her attention on the appellant’s manner of driving, rather than on the General Order itself, and on the appellant’s belief about his compliance with it.
Contrary to the submission of the appellant, I do not accept that there is to be found in s 46 a particular defence available only to police officers who drive in the course of their duties in accordance with a General Order issued by the Commissioner.
Even if regard is had to the General Order, it does not, in my opinion, assist the appellant. As the Magistrate considered (correctly, in my opinion) that the question of whether the appellant’s driving did conform with the General Order concerning urgent duty driving was immaterial, she did not have to determine whether or not it did so conform. On appeal however, both parties made submissions concerning the appellant’s conformity with the General Order and submitted that this Court should, if necessary, make the appropriate findings.
On the view I take of the matter, it is not possible to regard the appellant’s driving as having been in conformity with the General Order. At the very least, the circumstances confronting the appellant could hardly be characterised as “exceptional” such as to permit the use by the appellant of a unmarked police car in a pursuit. What prompted the pursuit initially was the motorcyclist’s failure to stop when the appellant sought to speak to him about his riding whilst unlicenced (the previous licence having expired). The appellant’s driving was wholly disproportionate to that circumstance. He had other means of reporting the motorcyclist. The appellant had identified the motorcyclist and he knew his address. An immediate apprehension of the motorcyclist was not necessary.
Further, a supervisor was not controlling or coordinating the pursuit, nor had the appellant provided the details of the pursuit required by the General Order to the Communications Centre. Admittedly there was only a very limited time within which these things could have occurred.
In his evidence at trial, the appellant said that his purpose changed when he saw the dangerous manner in which the motorcyclist was riding. He then wanted to stop him in order to protect the public from the danger which his riding presented. The Magistrate made no specific finding about this evidence and it is not clear whether she regarded it as part of the appellant’s reconstruction. But even if the evidence was accepted, I do not consider that it assists the appellant. A more obvious way of bringing an end to the motorcyclist’s dangerous riding was for the appellant to cease his pursuit. Ordinary experience indicates that those pursued cease taking extraordinary steps to avoid capture or apprehension when there is no further pursuit. Further, as was pointed out by White J in Morgan v Pearson[28]:
…the public wishes to be “safe” but at not too great a cost. There is no point in killing several people on a journey designed to save the lives or property of other people. Whilst it is a consideration of some importance that exempt vehicles must feel free to carry out their emergency services without too readily being found guilty of negligence, another consideration of high policy and even greater importance cuts across it, that is to say, the duty not “to place others in a position of danger”…[29]
[28] (1979) 22 SASR 5.
[29] Ibid at 10.
The appellant’s pursuit of the motorcyclist meant that instead of one, there were two vehicles creating risks for the public. The appellant’s conduct amounted, in effect, to a near doubling of the very risk from which he said he wished to protect the public. It is difficult in those circumstances to regard the appellant’s driving as having been proportionate to the circumstances which he faced.
For these reasons, I do not consider that the appellant’s driving was in conformity with the Commissioner’s General Order.
In my opinion, the appellant’s circumstances were not exceptional. He did not have an “exceptional excuse” of the kind to which the majority in R v Coventry adverted.
Finally, in my opinion, the submission that exposure to high speed driving by police vehicles is an ordinary or necessary risk of the road simply cannot be sustained. The risk which the appellant’s driving presented to the heavy vehicular and pedestrian traffic present on, and adjacent to, Oxenham Drive on 16 November 2005 cannot sensibly be described as an ordinary or necessary risk of the road.
I emphasize that it is the fact of compliance, or otherwise, with the General Order which I consider to be immaterial. That is a different matter from the actual manner of the urgent duty driving, which may of course have been adopted because of the General Order.
On a charge under s 46 involving a police vehicle travelling at high speed, some particular matters will usually be relevant. The very fact that the vehicle is marked as a police vehicle and that it has its flashing lights, sirens and headlights activated, will usually be material. These features will be relevant because they are a means of alerting the members of the public in the vicinity to the presence of the vehicle and to the fact that it may be travelling at greater than usual speed.
The obligations on drivers under rr 78 and 79 of the ARR will also be relevant. Those rules require drivers to keep clear of, and to get out of the path of, police and emergency vehicles which are displaying their flashing lights or sounding their alarms. The existence of those obligations, and the usual experience of compliance by members of the public with them, would, in my opinion, be relevant matters to be considered under s 46(2)(d). Further, there may be other circumstances which are relevant to a charge of dangerous driving arising out of high speed driving in a police vehicle. For example, in a particular case, other police vehicles may have blocked the entrances from side roads; or in cases not involving a pursuit, one vehicle may have gone ahead warning of the approach of the second; or the driver may have information from aerial observations that the way ahead is clear.
In the present case the Magistrate took account of the use of the flashing lights and sirens. That use was however insufficient to overcome the obvious danger which the appellant’s sudden rapid movements in Oxenham Drive presented to pedestrians and other vehicles.
For the reasons given above, these grounds of appeal fail.
Honest and Reasonable Mistake of Fact
The appellant sought to invoke the defence of honest and reasonable mistake of fact articulated by Dixon J in Proudman v Dayman in the following terms:
As a general rule an honest and reasonable belief in a state of a facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence.[30]
[30] (1941) 67 CLR 536 at 540.
The appellant submitted that he had genuinely believed that his driving was compliant with the General Order and, accordingly, that it was safe.
The Magistrate rejected a submission to this effect. The Magistrate considered that even if the appellant had had an honest belief to the effect claimed, such a belief was not reasonable in the circumstances.
In my opinion, the appellant has not demonstrated that the Magistrate’s conclusion on this topic was incorrect. In the first place, a belief by the appellant that he was driving in conformity with the requirements of the General Order was not a belief in a state of “facts”; instead, it was a belief in a legal conclusion. Secondly, for the reasons given earlier, such a belief, if it was held by the appellant, was not reasonable. The General Order indicates clearly that unmarked police vehicles should not be engaged in any urgent duty driving unless exceptional circumstances exist. The circumstances confronting the appellant could not reasonably have been regarded as exceptional.
The appellant contended that he had an honest and reasonable belief that his driving was not dangerous to the public. He submitted that this by itself constituted the defence of honest and reasonable mistake of fact. Again, I do not accept that submission. There is a difficulty in concluding, on the one hand, that a reasonable person in the appellant’s position would have appreciated the risk of injury or harm to members of the public which his driving involved, and on the other, accepting that the appellant could reasonably have thought that his driving did not involve such a danger.
There are circumstances in which a defence of honest and reasonable mistake may be available to a person charged with an offence of driving in a manner which is dangerous to the public. A mistaken belief about the road worthiness of the vehicle is an example commonly given in the authorities. In Jiminez v The Queen[31] the High Court considered that an honest and reasonable mistake by a driver about the state of his mental alertness may provide a defence to a charge of driving in a manner dangerous. However, the appellant did not point to any authority in which, absent a mistake as to some matter of fact, the defence had been held to be available simply because the driver was subjectively mistaken about the safety of his or her driving.
[31] (1992) 173 CLR 572.
In my opinion, this ground of appeal fails.
Conclusion
For the reasons given above, my opinion is that the appeal should be dismissed.