Leech v Illich - [2000] WASCA 370

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LEECH -v- ILLICH [2000] WASCA 370

CORAM: MILLER J

HEARD: 14 NOVEMBER 2000

DELIVERED : 14 NOVEMBER 2000

FILE NO/S: SJA 1087 of 2000

BETWEEN: EDWIN LEECH
Appellant
AND
PAUL STEPHEN ILLICH
Respondent

Catchwords:

Criminal law - Road traffic offences - Diverging without warning - Motorcyclist between lanes of traffic - Obligation to signal

Legislation:

Road Traffic Code, reg 803(1), reg 803(2)(b)

Justices Act 1902, s 199(1)(b)

Result:

Appeal dismissed
No orders as to costs

Representation:

Counsel:

Appellant: In person
Respondent: Mr A J Sefton

Solicitors:

Appellant: In person
Respondent: State Crown Solicitor

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

Nil

Case(s) also cited:

Nil

MILLER J: The appellant was charged in the Court of Petty Sessions, Perth, that on 17 November 1999 at Perth he drove a vehicle, registered number UM‑2801, on a road, namely Riverside Drive, and diverged left and right without giving warning of his intentions continuously for 30 metres immediately before so diverging, contrary to reg 803(1) and reg 803(2)(b) of the Road Traffic Code.
The defendant pleaded not guilty to the charge, which was heard before Mr Calder SM in the Court of Petty Sessions, Perth on 11 May 2000. After hearing evidence the learned Magistrate convicted the appellant of the offence with which he was charged. He was fined $40 with $57.70 costs. A spent conviction order was made.
The appellant was granted leave to appeal the conviction upon the following grounds:
(a)the learned Magistrate acted without or in excess of jurisdiction, or in the alternative erred in law by finding the appellant guilty of an offence which had not been charged or tried and which was not an alternative verdict;
(b)the learned Magistrate erred in law in finding that crossing a lane marking amounts to diverging within the meaning of reg 803(1) and reg 803(2)(b) of the Road Traffic Act [sic Code];
(c)the learned Magistrate erred in fact and in law in finding that crossing of a lane marking amounted to diverging in the particular facts of the case; and
(d)the conviction was unsafe and unsatisfactory.
Although there was arguably duplicity in the charge, diverging left and right, the learned Magistrate dealt with the matter on the basis that it constituted a charge of diverging on one occasion without giving warning of intention to do so. This I find to be the first divergence the police officer observed. The learned Magistrate could have called upon the prosecution to elect which of the manoeuvres carried out by the appellant was relied upon, but did not. However, no substantial miscarriage of justice has occurred as a result of the way in which the matter was handled: Justices Act 1902, s 199(1)(b).
The conclusions reached by the learned Magistrate were as follows:
(1)A police constable on a motorcycle travelling west on Riverside Drive observed the appellant on his motorcycle about 100 metres ahead of him approaching the intersection of Riverside Drive and Barrack Street. There was a red light at that intersection.
(2)The appellant drove between stationary vehicles in the marked lanes on the west‑bound carriageway of Riverside Drive and in doing so moved from lane to lane as he progressed towards Barrack Street. He thus diverged left and right as alleged in the complaint. As he did so, he gave no indication of his intention to move from lane to lane.
(3)The appellant diverged within the meaning of reg 803(1) and reg 803(2)(b) at least on the first occasion when he crossed from one lane to the other.
(4)The appellant gave no signal 30 metres prior to his intention of so diverging.
(5)There was no reason which emerged from the evidence for not signalling which would constitute any defence at law.
Although the police constable had not testified directly that he saw no indication, it is clear from his evidence that this was the reason why he apprehended the motorcyclist, as he said that upon stopping the motorcyclist he put to him that:
"It was an offence to travel through the line of traffic unless he can actually stay in one lane without diverging to the other lane while it's a multiple carriageway. I then went on to say that even if he did cross the lane, technically he has to give 30 metres' indication, which would be nearly impossible to do in the distance that he travelled."
The constable's main concern was the manoeuvring from lane to lane. He pointed out that it was practicably impossible to indicate in so doing, but it is apparent that he clearly saw that the motorcyclist had given no indication as he moved from lane to lane. The constable did make it clear that because there was no indication he checked the indicators on the appellant's motorcycle and found that they were working, and had been operative at the relevant time.
I leave aside the question whether the appellant should have stopped and indicated an intention to change lanes each time he did so in view of the difficulties in actually indicating 30 metres ahead of each point of divergence.
In my view the learned Magistrate was quite correct in finding the charge proven against the appellant. The appellant did diverge from one lane to the other and did not indicate his intention of so doing as required by the relevant regulation. The word "divergence" is defined in the Shorter Oxford English Dictionary to involve a departure from a path or course. That, in my view, is what the appellant did.
Although the appellant in this case was performing a manoeuvre on his motorcycle which is quite commonly seen as motorcycles approach intersections where there is stationary traffic, the fact is that he was still required to indicate his intention to diverge from one lane to the other. The mere fact that traffic in the lanes between which he was moving was stationary makes no difference.
The requirement for signalling is clearly set out under the Road Traffic Code. It makes sense that a motorcyclist who is diverging from one lane to the other should be required to indicate his intention so to do. The driver of a stationary vehicle might well move forward whilst waiting in a line of traffic stopped at the lights and for that reason any motorcycle overtaking him and moving into the lane ahead of him (whether fully or in part) must be required to indicate his intention so to do.
I reject the submission of the appellant that as he was on a weaving course or path he could not be said to have diverged from that course or path. In my view, his course or path was between lines of traffic directly to the lights. It was ordinarily a straight path, but to the extent to which he diverged from a straight path he was required to indicate.
In my view, the grounds upon which the appellant was given leave to appeal from his conviction cannot be made out and the appeal is therefore dismissed.