Hunt v Bingham - [2018] WASC 148

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   HUNT -v- BINGHAM [2018] WASC 148
CORAM:   MCGRATH J
HEARD:   10 APRIL 2018
DELIVERED          :   11 MAY 2018
FILE NO/S:   SJA 1064 of 2017
BETWEEN:   ADAM KEITH HUNT
Appellant
AND
GREGORY BINGHAM
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE BENN
File Number             :   JO 13905 of 2015, JO 13906 of 2015

Catchwords:

Criminal law - Appeal against conviction for dangerous driving causing bodily harm and dangerous driving causing grievous bodily harm - Whether a miscarriage of justice for unsafe and unsatisfactory conviction - No miscarriage of justice - Magistrates findings reasonable in all circumstances

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 14
Road Traffic Act 1974 (WA), s 59A, s 59

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr C Townsend
Respondent	:	Ms K Cook

Solicitors:

Appellant	:	Lewis Blyth & Hooper (Gosnells)
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Brown v Lucas [2011] WASC 356
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
King v The Queen [2012] HCA 24; (2012) 245 CLR 588
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44
McPherson v Lucas [2008] WASCA 56; (2008) A Crim R 587
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 453
Peacock v James [2010] WASC 358
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
The State of Western Australia v Olive [2011] WASCA 25

MCGRATH J:

Introduction

Mr Hunt was convicted in the Magistrates Court after trial of two offences, being one offence of dangerous driving occasioning grievous bodily harm and one offence of dangerous driving occasioning bodily harm, contrary to s 59(1)(b) and s 59A(1)(b) of the Road Traffic Act 1974 (WA) (the Act). Both offences arise from the same motor vehicle incident.
Mr Hunt appeals his convictions, contending that there was a miscarriage of justice in that the convictions were unsafe and unsatisfactory. Mr Hunt does not say that the Magistrate made errors in his findings, but instead contends that the findings that were made did not prove beyond a reasonable doubt that his driving was dangerous in all the circumstances. I have reviewed the entire trial record and determined that there was no miscarriage of justice. That is, Mr Hunt did commit the offences of dangerous driving causing grievous bodily harm and bodily harm. Accordingly, for the following reasons, leave to appeal is granted, but the appeal is dismissed.
In these reasons for decision, I will consider the following:
(a)The Magistrates Court proceedings.
(b)The grounds of appeal.
(c)The legal principles.
(d)The merits of the appeal.

The charges and Magistrates Court proceedings

On 4 May 2015, Mr Hunt was involved in a motor vehicle accident. Consequently he was charged with two offences, an allegation of dangerous driving occasioning grievous bodily harm and an allegation of dangerous driving occasioning bodily harm, contrary to s 59(1)(b) and s 59A(1)(b) of the Act respectively.
Mr Hunt pleaded not guilty to the two charges and appeared before his Honour for a two day hearing on 11 and 12 December 2017. Mr Hunt was represented by counsel. There was no issue at trial that Mr Hunt was the driver of the motor vehicle involved in the incident. Further, there was no issue that the complainant, Ms Rigter, suffered grievous bodily harm and that the second complainant, Mr Grose suffered bodily harm as a consequence of the traffic incident.
There were limited differences between the recollections of the witnesses. The Magistrate's findings are not the subject of any complaint of express error. Given that the facts as found by the Magistrate are not impeached by either party, the issue on this appeal is whether those findings concerning the manner in which Mr Hunt was driving constituted dangerous driving under s 59 of the Act.
His Honour considered that there were three significant matters in issue in the trial, being:
1.Whether or not the appellant indicated before he commenced his overtaking manoeuvre.
2.The degree to which Mr Hunt moved his vehicle across the dotted white lines separating the southbound and northbound lanes; and
3.The manner in which Mr Hunt moved his vehicle across the dotted white lines separating the southbound and northbound lanes.
After finding that Mr Hunt did indicate, his Honour then made detailed findings regarding the degree to which Mr Hunt moved his vehicle and the manner of that movement. As I have observed, his Honour's express findings are not impeached.
I will consider his Honour's findings and reasoning in detail when considering the merits of the appeal.

Appeal

This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which requires leave to appeal.
An appeal hearing is not a retrial of the issues that were before the primary court. The appellant must demonstrate that the primary court fell into error in a manner specified in a ground of appeal. The grounds of appeal on which appeals may be brought include that the court of summary jurisdiction made an error of law or fact or both, acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[1] On appeal, the court has the power to make a variety of orders, including to dismiss or allow the appeal, and to set aside or vary the decision of the court below.[2]
[1] Criminal Appeals Act2004 (WA), s 8(1).
[2] Criminal Appeals Act2004 (WA), s 14.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[3] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[4]
[3] Criminal Appeals Act 2004 (WA), s 9(2).
[4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56].
The grounds of appeal are as follows:
Ground 1-The verdicts of guilty were, in all the circumstances unreasonable and unsupported by the evidence.
Ground 2 - The Learned Magistrate erred, in fact and in law, when finding that, in all the circumstances, the offender was driving dangerously.
Mr Hunt accepts that the gravamen of ground two is encompassed in ground one. Mr Hunt's written submissions addressed ground one. Those submissions are relied upon for both grounds. Both parties accept that the determination of ground one will also determine the second ground.

Legal principles

Miscarriage of justice

The statutory ground of miscarriage of justice is commonly encompassed under the term that the conviction is 'unsafe and unsatisfactory'. The High Court has outlined the principles that apply in determining whether a conviction is unsafe and unsatisfactory in the context of appeals from a jury verdict.
In Libke v The Queen,[5] Hayne J stated that where it is alleged that a conviction is unsafe and unsatisfactory, the question for an appellate court is:[6]
[W]hether it was open to the [tribunal of fact] to be satisfied of guilt beyond reasonable doubt, which is to say whether the [tribunal of fact] must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the [tribunal of fact] to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case ... [the critical] evidence did not require the conclusion that the [tribunal of fact] should necessarily have entertained a doubt about the appellant's guilt (original emphasis).
[5] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559.
[6] Libke v The Queen, 596 ‑ 597 [113].
The Court is required to make an independent assessment of the evidence, both as to its sufficiency and its quality.[7]
[7] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 453, 473 (Deane, Toohey & Gaudron JJ); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, 406 [14] (French CJ, Gummow & Kiefel JJ).
The tribunal of fact is the person entrusted with the responsibility of determining the guilt or innocence of the appellant at first instance.[8] However,[9]
[i]n most cases a doubt experienced by an appellate court will be a doubt which a [tribunal of fact] ought also to have experienced. It is only where a [tribunal of fact's] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
[8] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson & Toohey JJ); SKA v The Queen, 405 ‑ 406 [13].
[9] M v The Queen, 493; SKA v The Queen, 405 ‑ 406 [13].
The Court of Appeal of Western Australia has stated that the principles concerning unsafe and unsatisfactory verdicts of a jury are applicable to appeals from a decision of a magistrate.[10]

Dangerous driving - statutory framework

[10] The State of Western Australia v Olive [2011] WASCA 25 [44] (Buss JA with whom McLure JJA & Mazza agreed).

Section 59 of the Act relevantly provides:
59.Dangerous driving causing death or grievous bodily harm
(1)If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of, or grievous bodily harm to, another person and the driver was, at the time of the incident, driving the motor vehicle -
...
(b)in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, is dangerous to the public or to any person,
the driver commits a crime and is liable to the penalty in subsection (3).
(2)For the purposes of this section -
[(a) deleted]
(b)it is immaterial that the death or grievous 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; and.
Section 59A(1) of the Act relevantly provides:
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 -
...
(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.
Section 59(4) provides that a person charged with an offence against s 59(1) may instead be convicted of the offence of careless driving. Section 59A(4) provides that a person charged with an offence against s 59A(1) may instead be convicted of the offence of careless driving.
The term 'dangerous driving causing death or serious injury' was considered by the High Court in King v The Queen.[11] The High Court in that decision considered the term in the context of s 319(1) of the Crimes Act 1958 (Vic). In a joint judgment, the majority approved the remarks of Barwick CJ in McBride v The Queen[12] in respect of the phrase 'speed or in a manner dangerous to the public.' Barwick CJ stated:[13]
[11] King v The Queen [2012] HCA 24; (2012) 245 CLR 588, 605 [38].
[12] McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44.
[13] McBride v The Queen, 50.
This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby. (Emphasis added by the majority in King v The Queen).
The majority in King v The Queen then referred to the New Shorter Oxford English Dictionary and considered the ordinary meaning of dangerous, and stated:[14]
[f]raught with or causing danger; involving risk; perilous; hazardous; unsafe'. It describes, when applied to driving, a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver's own passengers.
The majority in King v The Queen concluded that:[15]
[i]t may be that in many if not most cases dangerous driving is a manifestation of negligence in the sense of carelessness. It may also be a manifestation of deliberate risk-taking behaviour. It may be that in some circumstances where particular attention is required to the road and to other road users, momentary inattention will result in a manner of driving that is dangerous within the meaning of the section. The assessment of whether the manner of driving was dangerous depends on whether it gave rise to the degree of risk set out by Barwick CJ in McBride and adopted by the plurality in Jiminez in relation to s 52A of the Crimes Act 1900 (NSW).
In Jiminez v the Queen[16] the High Court stated that for the driving to be characterised as dangerous:[17]
there must be some feature which is identified not as a 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.
[14] King v The Queen, 605 [38].
[15] King v The Queen.
[16] Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572.
[17] Jiminez v The Queen, 579 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ).
The Court of Appeal of Western Australia has applied McBride v The Queen and Jiminez v The Queen when considering the elements of the offences under s 59(1)(b) and s 59A(1)(b) of the Act.[18]
[18] McPherson v Lucas [2008] WASCA 56; (2008) A Crim R 587, 593 [24] - [25] (McLure, Wheeler & Miller JJA agreeing).

The merits of the appeal

At the commencement of the hearing before the Magistrate, counsel for Mr Hunt outlined the issues at trial during his opening.[19] Whilst not formally making admissions pursuant to s 32 of the Evidence Act1906 (WA) the hearing proceeded on the basis that admissions were made. The admissions made were that:
1.Mr Hunt was the driver of the Nissan truck that was involved with the motor vehicle incident that occurred on 4 May 2015, being the incident the subject of the Prosecution Notice.
2.The injuries sustained by Ms Rigter constituted grievous bodily harm.
3.The injuries sustained by Mr Grose constituted bodily harm.
[19] ts 3 ‑ 4 (11/09/17).
Given the admissions made at the hearing, the prosecution was required to prove that Mr Hunt's driving behaviour in moving his motor vehicle across the white dotted line between the northbound and southbound lanes was, having regard to all the circumstances of the case, dangerous to the public or any person.
Given that Mr Hunt did not dispute the nature of the injuries sustained by the two complainants, medical reports were received as exhibits.[20]
[20] Exhibit P7 & Exhibit P8.
Statements of the police witnesses who attended the incident were tendered by consent. The statements tendered comprised that of Officer Reuter,[21] Officer Rosman,[22] Officer Brennan,[23] Officer Turner,[24] Officer Bingham,[25] and Officer Matthews.[26] I have read each of the statements received as evidence at the initial hearing. The officers were the first responders and investigators. The statements are without controversy and consequently were not referred to by counsel during the course of the hearing. The Magistrate did not refer to the statements of the police witnesses during his reasons for decision.
[21] Exhibit P1RE.
[22] Exhibit P2R2.
[23] Exhibit P3B.
[24] Exhibit P4T.
[25] Exhibit P5B1.
[26] Exhibit P6M.
The witnesses who gave evidence for the prosecution comprised Ms Rigter, Mr Plumb, Mr Grose, Ms Hunt, and Mr Murdoch. Mr Hunt gave evidence on his own behalf and relied upon evidence from Mr Davey. Other than Mr Davey, who was called by the defence to give opinion evidence, the witnesses who gave evidence were persons who were either driving or passengers in motor vehicles on the road at the time of the motor vehicle incident and were able to give evidence of their observations.
I have considered the testimony of each of those witnesses. It is not necessary to recite the evidence of each witness but I will refer, when necessary, to the witnesses' respective testimony.
I now consider the reasoning of the Magistrate as to why Mr Hunt's manner of driving was dangerous. In so doing, I will consider the sufficiency of the evidence and determine whether there has been a miscarriage of justice in that the finding of guilt is unsafe and unsatisfactory.
Both Mr Hunt's vehicle and Ms Rigter's vehicle were travelling along Indian Ocean Drive. Mr Hunt was driving a Nissan truck with a lengthy flatbed towing a trailer with a flatbed of similar length as the truck. The total length of Mr Hunt's vehicle was 20 m. Both the flatbed on the truck and the trailer were transporting water tanks.[27]
[27] ts 4 (20/10/17).
In front of Mr Hunt's vehicle was a vehicle (towing a caravan) being driven by Mr Plum. Ms Rigter, who was in the vehicle behind Mr Hunt, was driving a 4WD Land Cruiser utility. The second complainant, Mr Grose, was a passenger in Ms Rigter's vehicle. Immediately behind Ms Rigter's vehicle was a 4WD Prado being driven by Mr Murdoch with a passenger named Ms Nicole Hunt (no relation to Mr Hunt).[28]
[28] ts 4 (20/10/17).
The vehicles were driving in a convoy and evidently being slowed down by the motor vehicle towing the caravan driven by Mr Plum. Mr Hunt gave testimony that he was aware that he was the second of five vehicles in a convoy following the vehicle towing the caravan.[29]
[29] ts 93 (20/4/17).
For approximately 10 to 20 minutes prior to reaching a clear stretch of road Mr Hunt remained directly behind the vehicle towing the caravan.[30] The Magistrate found that Mr Plum was travelling at 80 kms per hour. The road at that time was winding with ‘no opportunity whatsoever for anyone to overtake'.[31]
[30] ts 3 (20/10/17).
[31] ts 4 (20/10/17).
The speed limit was 110 km per hour for ordinary motor vehicles but the convoy was travelling at 80 km per hour due to the understandably cautious driving by Mr Plum. Mr Hunt was restricted to a speed limit of 100 km given the type of the vehicle he was driving. As the convoy approached a straight stretch of road Mr Plum moved his vehicle and caravan over to the side of the road to allow the other vehicles to overtake.[32] After indicating, Mr Plum moved onto the flat wide shoulder of the road to the side of the northbound lane which is 'a fairly wide, flat shoulder on the left hand side of the road'.[33]
[32] ts 4 (20/10/17).
[33] ts 4 (20/10/17).
At that time, Mr Hunt reduced the speed of his vehicle to 'match the caravan's speed of 80 km per hour'.[34]
[34] ts 4 (20/10/17).
At that time, Mr Hunt determined to overtake Mr Plum's vehicle. Mr Hunt checked his rear vision mirror and the Magistrate found that Mr Hunt 'sees that the path behind him is clear'.[35] That finding is to be understood as meaning that there was no other vehicle overtaking or moving into the southbound lane. There were clearly vehicles behind Mr Hunt including Ms Rigter's vehicle.
[35] ts 4 (20/10/17).
Significantly, the Magistrate also determined that when Mr Hunt initially looked in his rear vision mirror he had seen the path behind him clear but was 'unable to make any informed judgment about where these three other vehicles are' but that 'he knows they are behind his truck'.[36] The reason for him being unable to make any informed judgment was a consequence of the significant blind spot for Mr Hunt whilst driving the truck and the lengthy trailer. The defence expert, Mr Davey, described there being zero visibility from the appellant's truck of vehicles driving behind the truck. Mr Hunt's evidence was that he was unable to see any vehicle behind him but he may be 'just be able to see a vehicle if it was 100 m behind.[37] Despite being unable to make any informed judgment as to the location of the other three vehicles (other than that they were behind his truck), Mr Hunt then faced forward towards the motor vehicle towing the caravan, indicated and then manoeuvred his vehicle to overtake.[38]
[36] ts 10 (20/10/17).
[37] ts 151 (12/9/17).
[38] ts 11 (20/10/17).

The Magistrate found, after assessing the evidence, that Mr Hunt indicated[39] and then turned his attention 'back to the front, to focus on the caravan, accelerates, and commences his overtaking manoeuvre by moving towards the oncoming lane, into the centre line or over towards the oncoming lane on the right'.[40]
[39] ts 5 (20/10/17).
[40] ts 4 (20/10/17).
The Magistrate found that at the time that Mr Hunt indicated, Ms Rigter had pulled out to overtake Mr Hunt's truck. Prior to overtaking, Ms Rigter checked the oncoming southbound lane and after determining that the lane was clear, she indicated and moved her vehicle into the southbound lane to overtake. The Magistrate found that Ms Rigter moved her vehicle at the same time that Mr Hunt was looking forward (having checked the lane).[41]
[41] ts 5 (20/10/17).
The Magistrate stated that Ms Rigter did not see the indication for two reasons. The first reason was that at the moment that Mr Hunt indicated, Ms Rigter had already commenced pulling out and was moving alongside the truck.[42] The second reason was that the indicators on Mr Hunt's vehicle 'were low, tucked in under the trailer, about 500 mms off the ground.'[43]
[42] ts 5 (20/10/17).
[43] ts 5 (20/10/17).
His Honour found that Mr Hunt was aware that there was a significant visibility problem with the indicators due to their location on the trailer.[44] Mr Hunt gave evidence that the position of the trailer indicators was very low and that it was not uncommon for other drivers not to see his indications.[45]
[44] ts 5 (20/10/17).
[45] ts 165 (12/09/17).
Significantly, the Magistrate found that Ms Rigter, Mr Grose, Ms Nicole Hunt, and Mr Murdoch all gave similar unchallenged evidence, that at the point when the appellant's motor vehicle started to veer to the right, Ms Rigter's vehicle was halfway down the appellant's truck and trailer configuration. Accordingly, the Magistrate in his reasons stated that 'it's my finding on the evidence that the point where Mr Hunt looks after commencing to veer across to the right, Ms Rigter is halfway down the length of his truck.’[46]
[46] ts 9 (20/10/17).
The Magistrate found that the next event was that 'at the moment Mr Hunt has turned from checking his rear view mirror, and as he indicates, Ms Rigter has pulled out to overtake Mr Hunt's truck'.[47] The complainant's motor vehicle moved into the incoming southbound lane to overtake the appellant's motor vehicle and trailer prior to Mr Hunt commencing his own manoeuvre to overtake the motor vehicle towing the caravan. His Honour referred to the evidence of Mr Hunt that he looked at 'my right side mirror. Noticed a Land Cruiser in the southbound lane. The Land Cruiser was about halfway up my trailer'.[48]
[47] ts 5 (20/10/17).
[48] ts 9 (20/10/17).
Mr Hunt then looked in his rear mirror again but after he commenced to veer.[49] However, the Magistrate found that Mr Hunt 'hasn't looked in his mirror after he has commenced to veer.'[50] That is, the motion of moving the steering wheel to the right and therefore changing lanes was not accompanied by the checking in the mirror to confirm whether the lane remained free of vehicles.
[49] ts 11 (20/10/17).
[50] ts 11 (20/10/17).
The Magistrate considered the manner in which Mr Hunt manoeuvred his truck and trailer when overtaking. The Magistrate expressly found that the manner in which Mr Hunt moved his truck and trailer across the dotted line was a fairly rapid manoeuvre which involved the truck and trailer veering into the southbound lane 'faster than one would normally engage in an overtaking manoeuvre' but falling short of a sharp, sudden move that would have endangered the load on the appellant's truck and trailer flatbeds.[51]
[51] ts 8 (20/10/17).
The Magistrate concluded that 'my finding is that it was a fairly rapid manoeuvre. It was a fairly fast manoeuvre that all of the prosecution witnesses who I've just referred to described as a veering manoeuvre'.[52]
[52] ts 8 (20/10/17).
Therefore, the Magistrate found that Ms Rigter's vehicle had 'moved up there between the time' Mr Hunt had looked in the rear view mirror, looked forward to the front, indicated and commenced to accelerate and then veered into the southbound lane.[53] The Magistrate found that the consistent unchallenged evidence of the witnesses was that at the time that Mr Hunt moved his vehicle, Ms Rigter's vehicle was already halfway down the length of his vehicle and trailer.[54] The Magistrate found that the evidence was overwhelming that Ms Rigter's vehicle was already halfway down the truck trailer configuration when Mr Hunt commenced to veer across.[55]
[53] ts 12 (20/10/17).
[54] ts 9 (20/10/17).
[55] ts 11 (20/10/17).
At that point, Ms Rigter took evasive action, resulting in her hitting the shoulder of the road and her vehicle rolling.[56] The Magistrate found that at that point, Mr Hunt's vehicle was straddling the middle of dotted line in the middle of the road.[57] The size and location of Mr Hunt's vehicle had the consequence that Ms Rigter had no option other than to take the evasive action which lead to her vehicle rolling.
[56] ts 9 (20/10/17).
[57] ts 9 (20/10/17).
The Magistrate found that given all the circumstances, Mr Hunt should have checked his rear vision mirrors. His Honour observed[58] that in cross-examination Mr Hunt accepted that the most appropriate time to check his rear vision mirrors was at the time when he was going to change lanes by moving the steering wheel to the right, and that he failed to do so.[59]
[58] ts 13 (20/10/17).
[59] ts 167 (12/09/17)
The Magistrate rejected the defence case that this was an occasion where Mr Hunt was unable to give way to a vehicle that he could not observe.[60] Rather, the Magistrate determined that Mr Hunt in all the circumstances and 'knowing everything that he was aware of’, should have looked in the rear vision mirror prior to manoeuvring to overtake.[61] Mr Hunt failed to look at the crucial moment.
[60] ts 12 (20/10/17).
[61] ts 12(20/10/17).
I consider that Mr Hunt's driving was dangerous in all the circumstances. In summary, those circumstances are that:
1.Mr Hunt was aware that three vehicles were travelling behind him. He knew so because he formed part of a convoy of vehicles for 10 to 20 minutes prior to the incident.
2.Mr Hunt's vehicle was a flatbed truck towing a trailer with the total length being 20 m. The vehicle was carrying water tanks.
3.Mr Hunt did not know the location of the vehicles travelling behind him because he could not see the vehicles. This was due to a significant blind spot that restricted his vision to vehicles that were at least 100 m behind his trailer.
4.The convoy, after moving through a winding road for 10 to 20 minutes, reached a point in the road where there were no oncoming vehicles.
5.Mr Hunt's vehicle was restricted to a 100 km limit but he was aware that the vehicles behind were not limited to that speed limit.
6.Mr Hunt was aware that there were visibility problems with his indicators for the vehicles following his vehicle. That is, he was aware of the likelihood that the drivers following would not be able to observe the indicators on his vehicle.
7.Mr Hunt checked behind him in preparation for commencing his manoeuvre. He then looked forward. At that point he commenced a manoeuvre that was a fairly rapid manoeuvre which involved the truck and trailer veering into the southbound lane 'faster than one would normally engage in an overtaking manoeuvre.'
8.Prior to actually commencing that rapid manoeuvre, Mr Hunt did not make any further vision checks. Mr Hunt turned the steering wheel to the right but did not check at the time he was making that action. Only after pulling out did Mr Hunt check his rear vision mirror again. By that time, Ms Rigter was halfway down his flatbed truck and trailer. That is, Ms Rigter's vehicle had moved into the southbound lane prior to Mr Hunt commencing turning the steering wheel to the right.
9.Ms Rigter did not see the indication for two reasons. Firstly, because Ms Rigter had already manoeuvred into the southbound lane prior to Mr Hunt indicating. Secondly, because of the low level at which the indicators are positioned on Mr Hunt's vehicle.
10.At that time, as a consequence of Mr Hunt's driving Ms Rigter took evasive action resulting in her vehicle rolling. That caused the injuries to both Ms Rigter and Mr Grose.
The Magistrate's reasoning that Mr Hunt's driving was dangerous in all the circumstances was without error. It was open to the Magistrate to be satisfied that the only reasonable inference in all the circumstances was that Mr Hunt's driving constituted a danger to the public. The evidence does not support Mr Hunt's contention that the Magistrate must have entertained a doubt with his guilt or that the verdict was unreasonable.
Therefore, after considering the sufficiency of the evidence I am satisfied that it was open to the Magistrate to be satisfied beyond a reasonable doubt as to Mr Hunt's guilt. The question of whether Mr Hunt's driving was dangerous is an objective one. I have had regard to what Mr Hunt did, what he said that he did, the entire circumstances prevailing such as road conditions, the type and length of the vehicles involved, visibility and also the factors particular to the other vehicle involved.[62] I must also have regard to what Mr Hunt knew or ought reasonably to have known.[63]
[62] Peacock v James [2010] WASC 358; Brown v Lucas [2011] WASC 356.
[63] McPherson v Lucas [31] (McClure JA).
Mr Hunt failed to make the necessary check in his rear vision mirror prior to manoeuvring his truck and trailer to overtake. Whilst Mr Hunt did initially check his rear vision mirror, he then looked forward, indicated and changed lanes. He failed to look again after he indicated and before he began his manoeuvre. In the time that lapsed from the initial check Ms Rigter had time to commence her overtaking and had advanced half way up the length of Mr Hunt's truck and trailer. Mr Hunt knew that there were three motor vehicles behind his truck, he knew that there was a likelihood that the vehicles behind would not see his vehicle's indication, he knew that from his vehicle he had very limited visibility of the other vehicles' location and he knew that the motor vehicles were travelling in excess of 80 km per hour, yet he still manoeuvred his truck and trailer 'faster than one would normally engage in an overtaking manoeuvre' into the southbound lane.
In all those circumstances, I consider that Mr Hunt committed the offences of dangerous driving causing bodily harm and grievous bodily harm. It is important to note that my determination is based upon an assessment of all the prevailing circumstances. This is not a case where Mr Hunt merely failed to check his mirror. That failure must be assessed in light of the entire prevailing circumstances.
Accordingly, whilst leave to appeal is granted on both grounds, the appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZT
ASSOCIATE TO THE HONOURABLE JUSTICE MCGRATH
11 MAY 2018