Italiano v Jamieson
[2001] WASCA 434
•11 DECEMBER 2001
ITALIANO -v- JAMIESON [2001] WASCA 434
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 434 | |
| Case No: | SJA:1157/2001 | 11 DECEMBER 2001 | |
| Coram: | MILLER J | 11/12/01 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PASQUALIA GUIDONE ITALIANO NEIL ANDREW JAMIESON |
Catchwords: | Traffic offences Reckless driving Truck driving to wrong side of the road over considerable distance Oncoming traffic forced off the road Requirement for proof of advertence to likely consequences of dangerous manner of driving |
Legislation: | Nil |
Case References: | Attree v Randell (1993) 19 MVR 95 Edmond v Taylor (1998) 27 MVR 158 Mazza v Haime [2000] WASCA 42 McBride v R (1966) 115 CLR 44 R (a child) v Gwynne (1999) 28 MVR 441 Davern v Messel (1984) 155 CLR 21 Devries v Australian National Railways Commission (1993) 177 CLR 472 Kaighin v The Queen (1990) 1 WAR 390 Tate v Arnold (1993) 19 MVR 649 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Walker v Osborne (1995) 22 MVR 363 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant (Defendant)
AND
NEIL ANDREW JAMIESON
Respondent (Complainant)
Catchwords:
Traffic offences - Reckless driving - Truck driving to wrong side of the road over considerable distance - Oncoming traffic forced off the road - Requirement for proof of advertence to likely consequences of dangerous manner of driving
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant (Defendant) : Mr R P Camm
Respondent (Complainant) : Ms C L Bathurst
Solicitors:
Appellant (Defendant) : Camm & Associates
Respondent (Complainant) : State Crown Solicitor
Case(s) referred to in judgment(s):
Attree v Randell (1993) 19 MVR 95
Edmond v Taylor (1998) 27 MVR 158
Mazza v Haime [2000] WASCA 42
McBride v R (1966) 115 CLR 44
R (a child) v Gwynne (1999) 28 MVR 441
Case(s) also cited:
Davern v Messel (1984) 155 CLR 21
Devries v Australian National Railways Commission (1993) 177 CLR 472
Kaighin v The Queen (1990) 1 WAR 390
Tate v Arnold (1993) 19 MVR 649
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Walker v Osborne (1995) 22 MVR 363
(Page 3)
1 MILLER J: The appellant was charged in the Court of Petty Sessions, Toodyay, that on 6 May 2001 at Toodyay he wilfully drove a motor vehicle registered number H9995 on a road, namely, Toodyay (sic), in a manner that was, having regard to all the circumstances, dangerous to the public or to any person, contrary to the provisions of s 60(1) of the Road Traffic Act 1974 ("the Act"). To this charge the appellant pleaded not guilty and the matter was heard in the Court of Petty Sessions at Northam before Mr F Cullen SM on 3 September 2001. The appellant was convicted of the offence, fined $500 with $147.70 costs and his motor driver's licence was disqualified for a period of six months.
2 On 9 October 2001 the appellant was given leave to appeal the conviction on the following grounds:
"(a) The learned Magistrate made an error of law in finding that the applicant wilfully (emphasis added) drove a motor vehicle in a manner that was inherently dangerous or in a manner that was dangerous to the public or to any person.
(b) The learned Magistrate made an error of law in failing to make a finding as to whether the applicant adverted to the consequences or the quality of his driving as being inherently dangerous or dangerous to the public or any person, but nonetheless recklessly proceeded, indifferent to the consequences or the quality of the driving in question.
(c) The learned Magistrate made an error of law in either failing to consider, or in disregarding, the evidence given by the applicant and the respondent with respect to the applicant's state of mind immediately after he was stopped by the respondent, and in the video interview which took place a short time later.
(d) The learned Magistrate made an error of law in failing to make a finding as to the state of mind of the applicant at the time of the alleged offence, or, if appropriate, to draw any inference in that respect.
(e) The learned Magistrate made an error of law in failing to consider whether, in all of the circumstances, the facts may have constituted a lesser offence under the Road Traffic Act 1974."
(Page 4)
3 The case against the appellant was remarkably simple. It consisted of the evidence of two witnesses who had been following a truck driven by the appellant on Toodyay Road at about 8am on the morning of 6 May 2001. The evidence of those two witnesses, if accepted by the Court, established without doubt that the erratic driving of the truck on the morning in question constituted dangerous driving. The learned Magistrate did accept the evidence of both witnesses. He accepted their evidence in preference to that of the appellant and a witness called by the appellant.
4 The evidence of Mark Pratton was that he had been travelling on Toodyay Road towards Toodyay on the morning in question. He was driving his wife's Hyundai sedan in which his wife and three children were passengers. It was a wet day, with drizzle falling. At a point about 15 kilometres past the Herne Hill tip, Pratton pulled up behind a white utility which was following a truck. The speed of the vehicles in front varied considerably. The truck slowed and then sped up, slowed and then sped up again, but never over the speed limit and in fact a lot slower than the speed limit on occasions. The truck was described as a cattle truck with enclosed sides and framework over the top. Pratton was unable to see if there was anything within it. His evidence then continued as follows:
"Okay. Did you notice anything about the truck as it was driving along the road? --- The truck was waving all over the road.
Waving all over the road? --- It was over the white line quite a lot of the time, more than half the distance we followed it from when we caught up to the truck to where we turned off 8 kilometres from Toodyay the truck would have been over the wrong side of the road.
Okay. How far on to the other side of the road was the truck travelling? --- Well, most of the time the dual wheels -- one set of the dual wheels, the driver's side, was past the white line or on it and at some times half the truck was over the other side of the road.
Okay. Did the truck continue to stay in that position driving up? --- Continue to stay in that position?
Yes, on the road? --- It was waving across, back, across and back. The ute tried to --- it indicated to go around once and as
(Page 5)
- soon as it got sort of less than halfway around the truck it had to slam the brakes on and back off, pull back in behind the truck.
Okay. Did you see any other vehicles on the road when this truck was travelling along? --- There were other vehicles. There were about five or six other vehicles coming in the opposite direction to use heading towards Perth, or Midland. One of them was very close to hitting the truck."
5 Pratton followed the truck from the point about 15 kilometres past the tip, until he was about 8 kilometres from the Toodyay townsite. This took 35 to 40 minutes. During that time he saw five or six vehicles coming in the opposite direction, not all of which manoeuvred to the side of the road but at least one of which came very close to the truck and at least two or three had to pull to the side.
6 Mark Eric Vukovic was the driver of the utility which was immediately behind the truck. He described the manner of driving in the following terms:
"What did you observe about the truck? --- Well, the truck was driving off to the other side of the road in the sense that he wasn't driving in the left-hand lane; he was driving over the white lines.
Okay. How many times do you say he ran over the white lines? --- Well, I wasn't really counting how many but he was driving over the white lines quite a lot of times. People with trucks do drive near or on the white lines. He was driving on the white line and quite often and on numerous occasions I could see the double white line inside the duals --- this is inside, not outside."
- At one stage Vukovic pulled out to pass the truck, but as he did so, the truck drifted across the roadway towards him, forcing him to back off and pull in behind the truck again. He described the truck as coming "very close to taking out vehicles coming on the other side, and I mean close; you know, that's no exaggeration".
7 Vukovic followed the truck all the way in to Toodyay where it pulled up at a roadhouse. Vukovic got out of his vehicle and approached the driver of the truck. He asked him what he was doing and pointed out that he was trying to pass the truck when almost run off the road. He said, "That's a rear vision mirror. Can't you see?". The driver of the truck simply replied that he had not seen Vukovic.
(Page 6)
8 Vukovic then reported the matter to the Toodyay police who located the truck in Stirling Terrace, Toodyay. There a Constable Jamieson spoke to the appellant who admitted to having been the driver of the truck. When told that there had been a complaint about the manner of his driving, the appellant replied that he had done nothing wrong. He was then taken to the police station where a video record of interview was engaged in. The appellant denied that he had driven in the manner in which the witnesses contended he had.
9 The appellant gave evidence at the hearing. He testified that the day was very wet and there was much water on the road. He described "fog and the rain and water splashing everywhere" which restricted his vision and made it impossible to see out of the rear vision mirrors of the truck. He had come from Harvey where he had loaded 30 head of cattle onto the truck and he described the movement of the cattle on the truck as causing it to lean and sway a bit. He denied that he had at any time driven to the wrong side of the road and contended instead that he had driven safely and sensibly under the conditions. When cross-examined, he denied absolutely that he had driven to the incorrect side of the roadway or caused other vehicles to take evasive action.
10 The appellant had a passenger in his truck on the morning in question. This was Justin Patrick Flavell, the appellant's son-in-law. He had travelled from Perth with the appellant and when asked his opinion of the appellant's driving, he said:
"What was your opinion of the way Mr Italiano drove that morning driving into Toodyay? --- In my opinion, because of the road and weather conditions he drove very sensible and cautiously and because of the weather conditions I don't think you could drive any other way.
Where were you sitting in the truck? --- I was sitting in the front seat.
What were you doing during the journey into Toodyay? --- Basically just sat in the front seat, chatted to Mr Italiano the whole way, never once was asleep for the whole journey.
So you mentioned there were cattle in the truck. Did that have any effect on the journey as far as you could tell in terms of ---? --- You could feel the cattle move, for sure.
So as a passenger you could feel the cattle move? --- Definitely.
(Page 7)
- Were you aware of anything Mr Italiano was doing because of that movement? --- He would be trying to correct that."
11 When cross-examined, Flavell said that to his knowledge the truck had never crossed the double white lines and he had not observed any oncoming vehicles take evasive action.
12 The learned Magistrate reviewed the evidence of the prosecution witnesses and the evidence of the appellant and Mr Flavell. He accepted the testimony of the two prosecution witnesses and said:
"As I have said, I accept the evidence of both of the following drivers with respect to the way in which the defendant drove his vehicle, and one can only categorise the driving, given the circumstances of all of this driving for the long period of time, that there was, in my view, an element of recklessness on the part of the defendant and it did put other road users at risk with regards to the driving and the consequences of what the defendant was doing with regards to his driving at that particular time.
It must, of course, be driving which must in reality be actually or potentially dangerous to the public or to some other person, and that certainly was an element in this particular offence.
I am satisfied, therefore, that the prosecution have proved beyond reasonable doubt all the elements of the offence of reckless driving and I find the defendant guilty."
13 The learned Magistrate made reference to the term "reckless driving" as it is contained within the provisions of s 60 of the Act and said:
"The term 'reckless driving' with regards to section 60 of the Road Traffic Act implies that the driving was a serious indifference to the consequences, and the context, of course, of the reckless driving may refer to either the state of mind or may be descriptive of the quality of the driving of Mr Italiano on this particular occasion. Of course, the prosecution -- in cases of reckless driving, the reckless element is the obvious and serious risk of causing harm to other persons or property. Of course, as I have stated, the driver of a motor vehicle who is charged with reckless driving, there may be a failure to give any thought to the risk or there may be a deliberate disregard of the risk, but
(Page 8)
- the prosecution, of course, do not need to prove which of the two exists at the time of the driving."
14 The appellant complains that the learned Magistrate failed to appreciate that reckless driving imports both a manner of driving that is dangerous and a driver's understanding that the manner of driving is dangerous. Reliance was placed upon Edmond v Taylor (1998) 27 MVR 158 where it was made clear that the test as to whether a manner of driving is dangerous is objective and the test as to whether dangerous driving is wilful is subjective.
15 There is little argument in the present case but that the manner of driving of the appellant on the day in question was objectively dangerous. It is the question of the potentiality in fact of danger to the public in the manner of driving, whether realised by the driver or not, which makes it dangerous to the public: McBride v R (1966) 115 CLR 44 per Barwick CJ at 50. On any view of it, the appellant's driving of the truck on the Toodyay Road on the morning in question constituted both a danger to the public and a potentiality of danger to the public.
16 In relation to the element of wilfulness, the question to be answered is whether the driver of the vehicle adverted to the consequence or to the quality of the driving as being inherently dangerous or dangerous to the public or to any person and in so adverting to that consequence, nonetheless recklessly proceeded indifferent to the consequences or the quality of the driving in question: Attree v Randell (1993) 19 MVR 95 per Murray J at 100.
17 As I pointed out in R (a child) v Gwynne (1999) 28 MVR 441 (at 445), in an appropriate case an inference can be drawn that a person must have adverted to the consequences of or the quality of his driving as being inherently dangerous to the public or any person and/or that in so adverting to those consequences, he nonetheless recklessly proceeded indifferent to the consequences or the quality of his driving. (See also Mazza v Haime [2000] WASCA 42 per Heenan J at [12].)
18 Although the learned Magistrate did not in this case spell out the test for wilful driving in quite the way I have stated it, there was, in my view, ample evidence before him that entitled him to draw the inference and to draw it beyond reasonable doubt that the appellant must have adverted to the consequences of and/or quality of his driving as being inherently dangerous to the public or to any person and in so adverting to those consequences, nonetheless recklessly proceeded indifferent to the
(Page 9)
- consequences or the quality of his driving. After all, there was evidence that oncoming vehicles were forced to take evasive action and one was very nearly hit. Further, when Vukovic attempted to pass the truck, he himself was nearly run off the road. Although the appellant contended that he had not seen Vukovic's vehicle come along side him, he must have appreciated that in swinging to the wrong side of the road, any vehicle attempting to pass him was likely to be put in a situation of dire danger. The appellant could not have failed to see the evasive action taken by oncoming vehicles.
19 Whether or not the appellant had difficulty in handling his truck because of the load of cattle moving on it or whether he simply failed to adapt to the wet road conditions, it is unnecessary to find. The fact is that he allowed his vehicle on numerous occasions to move to the wrong side of the roadway on a major artery from the city to a substantial country town and in so doing, put the safety of other motorists at risk. The only inference that can be drawn (and it can be drawn beyond reasonable doubt) is that he must have adverted to the consequences of and/or quality of his driving as being inherently dangerous to the public or to any person, but in so adverting to those consequences, nonetheless recklessly proceeded indifferent to the consequences or quality of that driving.
20 In these circumstances the conviction was entirely justified and it was unnecessary for the learned Magistrate to consider whether or not any lesser offence had been made out. In my view, none of the grounds of appeal advanced by the appellant can be established and I would dismiss the appeal.
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