Lyford v Wride - [2009] WASC 106

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LYFORD -v- WRIDE [2009] WASC 106

CORAM: BLAXELL J

HEARD: 6 FEBRUARY 2009

DELIVERED : 30 APRIL 2009

FILE NO/S: SJA 1079 of 2008
SJA 1080 of 2008

BETWEEN: MAURICE HODGSON LYFORD
Appellant
AND
CHRISTOPHER GEORGE WRIDE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S M WILSON
File No  :MI 514 of 2008, MI 515 of 2008

Catchwords:

Criminal law - Appeal from two convictions for dangerous driving occasioning bodily harm - Collision as a result of appellant's failure to give right of way at a rural intersection - 'Camouflaged' intersection at which view of other vehicle was obscured by vegetation - Whether appellant's manner of driving in failing to stop at the intersection was dangerous

Legislation:

Road Traffic Act 1974 (WA), s 59A

Result:

Appeal allowed and convictions set aside

Category: B

Representation:

Counsel:

Appellant: Mr R W Richardson
Respondent: Ms L A Eddy

Solicitors:

Appellant: Callum Fraser
Respondent: State Solicitor for Western Australia

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

Jiminez v The Queen (1992) 173 CLR 572
McBride v The Queen (1966) 115 CLR 44
McPherson v Lucas [2008] WASCA 56

BLAXELL J: This is an appeal (pursuant to leave granted on 24 November 2008) from the appellant's convictions in the Magistrates Court at Midland on two charges of dangerous driving occasioning bodily harm contrary to s 59A(1)(b) of the Road Traffic Act 1974 (WA).
The charges arose from a collision at a rural intersection on 17 December 2006 when a vehicle driven by the appellant collided with another vehicle which had right of way. The presence of the intersection was difficult to discern at a distance and roadside vegetation obstructed the appellant's view of the other vehicle until moments before the collision. As a result of the collision, two passengers in the other vehicle suffered bodily harm.
The appellant pleaded not guilty to each charge but was convicted following trial. The Magistrate essentially found the appellant was aware of the intersection as he approached it, and as he drew closer also became aware that he could not see whether another vehicle was approaching from the right. In these circumstances his Honour found that the appellant should have stopped his vehicle to ensure that the way was clear, but instead drove in a manner that was dangerous to the public by entering the intersection at a speed of 40 ‑ 50 km per hour.
The appellant appeals from the Magistrate's decision on the following grounds:
(1)The verdict is unreasonable and cannot be supported by the evidence.
(2)The learned Magistrate erred in law in failing to have any regard to whether the prosecution had negatived honest and reasonable mistake of fact.
(3)The learned Magistrate erred in law and in fact by concluding that the appellant's manner of driving was dangerous because he 'should have stopped at the give‑way sign'.
(4)The learned Magistrate erred in law in reversing the burden of proof.
Although the first of these grounds does not conform to s 8 of the Criminal Appeals Act 2004 (WA), it has been particularised on the basis that the Magistrate made numerous errors of law or fact. The respondent does not object to me dealing with the issues raised by those particulars, and I accordingly propose to determine them as if ground 1 is a ground of appeal under s 8(1)(a)(i).

The evidence before the Magistrate

The collision occurred in sunny weather at about 2.40 pm on 17 December 2006 at the intersection of Haddrill and Campersic Roads Baskerville. The two vehicles involved were a Mercedes Benz sedan (the Mercedes) driven by the appellant (Mr Lyford) and a Ford Falcon sedan (the Ford) driven by John Cusato (Mr Cusato). Immediately beforehand, the Mercedes had been travelling east in Haddrill Road, and the Ford north along Campersic Road.
The speed limit on Campersic Road was 80 km per hour and on Haddrill Road 70 km per hour. It was not in issue that Mr Cusato was driving at or about the speed limit, and that Mr Lyford was travelling at about 60 ‑ 65 km per hour, but slowed to 40 ‑ 50 km per hour as he entered the intersection.
Each driver saw the other vehicle only momentarily before impact. In this regard, the view of each driver was obstructed by heavy vegetation on the south western corner of the intersection. Because of this vegetation, Mr Lyford had no opportunity of seeing the Ford until he was 6 ‑ 10 m from the edge of the sealed surface of Campersic Road. When he did gain that opportunity it was perhaps significant that the Ford was a mercury silver colour which 'changed in different lights' (ts 6).
Apart from the vegetation, there were further problems with the intersection as a result of its topography, layout and design. The intersection was originally construed as a 'T‑junction', with Haddrill Road as the continuing road, and Campersic Road as the terminating road. Subsequently, the T‑junction had been converted into a four‑way intersection to allow access to a new housing estate. This conversion left the intersection with particular design flaws which created a hazard for drivers. In this regard, the Magistrate accepted the evidence of a retired road safety consultant living in Campersic Road (Mr Burton), who testified to the following effect:
(1)The curb alignment in Campersic Road changed at the intersection. This caused drivers in Haddrill Road to believe that the edge of Campersic Road was further into the intersection than it in fact was (ts 50).
(2)The intersection was also 'camouflaged' in such a way that it was not easily seen by drivers (unfamiliar with the intersection) until they had 'gone too deep in' (ts 52 ‑ 53).
(3)There was a particular problem for drivers travelling east in Haddrill Road because of the camber on Campersic Road. This camber resulted in a small hump which caused the intersection 'to disappear into the background of Haddrill Road as it rises beyond the intersection' (ts 54 ‑ 55).
(4)The 'give‑way' sign facing east bound drivers in Haddrill Road was 'unusually close' to the left hand fence line. Furthermore, at a distance of 100 m, the sign itself blended in with the colour of a house in the background (ts 56 ‑ 57).
(5)The white line at the give‑way sign was faded and was not visible until 'around 15 metres out' by which time a driver was unlikely to be looking down (ts 57).
(With regard to the fourth of these deficiencies, the evidence conflicted as to whether one or two give‑way signs had faced east bound drivers in Haddrill Road. Although there was no specific finding on this issue, a close inspection of the photographic evidence reveals that there was in fact only one give‑way sign.)
A local resident who lived in the house closest to the intersection (Mrs Shaddick) testified that over a five year period she had been the first to attend between 24 and 30 crashes at the intersection. In almost every instance, 'it was the motor vehicle travelling along Haddrill Road that had struck the motor vehicle travelling along Campersic Road'.
The Magistrate also received evidence of a 'road safety audit' conducted by the local authority during March 2005, which resulted in the intersection being accepted for funding under the Federal 'black spot' scheme. Consequently, the intersection had been substantially modified after the collision the subject of the trial.
As to Mr Lyford's manner of driving, there was evidence of a written statement he made very shortly after the collision. According to that statement Mr Lyford had been travelling along Haddrill Road at only 60 ‑ 65 km per hour because he was unfamiliar with the area. As he approached the intersection he 'instinctively' slowed down and also looked right and left before proceeding through. He first saw the Ford only a 'millisecond' before the collision.
Notwithstanding these admissions, it was Mr Lyford's evidence‑in‑chief that he could not recall whether he saw the intersection before the collision, but assumed that he did because he had 'instinctively slowed down' (ts 21, 27). Similarly, he was also unable to recall whether he saw the give‑way sign before the accident (ts 33). Nevertheless, it was his evidence that:
I looked right, I didn't see anything. I looked left, I looked right again, and when I went to the intersection, out of the corner of my eye I saw a car.
During cross‑examination Mr Lyford was challenged about these matters by reference to the contents of his written statement as well as the photographs of the intersection which had been tendered in evidence. During the course of this cross‑examination, the following exchanges occurred:
Now, you say, 'I approached the intersection of Campersic Road and slowed down.' I'm assuming from that that you did know there was an intersection there?‑‑‑Yes, yes. You can see the shrubbery on one corner and you can see the shrubbery on the south‑east corner, yes.
Now, there is also things like a road going across - electricity lines overhead which would indicate there might be an intersection there?‑‑‑Sure.
Being a person with significant experience in driving on an unfamiliar road, you would have assumed that there might be an intersection there?‑‑‑Yes.
How far back from the intersection did you think you had reached the conclusion that there was an intersection there?‑‑‑I don't know.
…
Do you recall being surprised as you reached the intersection or did you approach it in a normal manner?‑‑‑Look, I was surprised to see him … (ts 33 ‑ 34).
…
So when you approached that intersection, did you feel that you had an obligation to give way to anything or not?‑‑‑Yes, as I've said, I instinctively - it's instinctive. It's automaticity. You stop, you slow down (ts 35).
…
In your opinion as a driver of some experience, would you have been able to stop before reaching the road from the speed you were doing or not?‑‑‑Would I have been able to stop?
Before entering the intersection; from the point you took the photograph?‑‑‑Yes.
Now, how much further do you have to go before you can get a clear view up the road?‑‑‑I can't remember (ts 36).
…
Would you say … that you could see through those trees and see a vehicle approaching?‑‑‑Well, I didn't.
You didn't and couldn't, I will put it to you?‑‑‑I couldn't see.
Yes?‑‑‑I didn't see. I didn't see. That's all I can say.
Did you assume you could, looking at those trees?‑‑‑I didn't assume anything. I was simply driving my car, reached the intersection and found myself inextricably involved in an accident (ts 38).
…
Do you accept that on occasions where [there is] a requirement to give way would you have to stop your car in order to fulfil that obligation?‑‑‑Yes, I think it would be prudent to [do] this, yes, in certain circumstances (ts 41).
Mr Lyford also accepted that he must have been less than 10 m from the intersection when he first had the opportunity of an unobstructed view to the right. However, it was also his evidence that he would not have had that view, if at that moment he was looking to the left (ts 39 ‑ 40).
To the extent that there were discrepancies between Mr Lyford's oral testimony and his written statement, it was also his evidence that:
When I made that statement, you have got to give credence to the fact that I'd been in a serious collision. I was discombobulated, maybe. I don't know (ts 33).

The law that applied

Section 59A of the Road Traffic Act relevantly provides:
(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.
For a manner of driving to be 'dangerous to the public' within the meaning of the section, it must have some quality which either intrinsically in all circumstances, or because of the particular circumstances, makes it in a real sense potentially dangerous to one or more members of the public: McBride v The Queen (1966) 115 CLR 44, 49 ‑ 50. In other words, the section requires the existence of an actual potentiality in fact of danger to the public in the particular manner of driving: McBride (50).
The offence is not established simply because bodily harm was caused as a result of the driver failing to drive with due care and attention: McPherson v Lucas [2008] WASCA 56 [24]. In this regard:
For the driving to be dangerous for the purposes of (s 59A) 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 (Jiminez v The Queen (1992) 173 CLR 572, 579).
Accordingly, in circumstances where it is said that the offence was committed as a result of the driver driving carelessly, the manner of driving must have been 'so inattentive' as to constitute a danger to the public in the sense referred to above: McPherson [34].
In determining whether a particular manner of driving was dangerous to the public, the correct approach is to firstly make factual findings as to the actual driving behaviour. In this regard, whether or not the driver looked for oncoming traffic is part of the manner of driving and is also relevant: McPherson [31].
In the end, the objective question to be determined is whether the manner of driving as found on the facts has the necessary quality of being dangerous to the public. In making this objective assessment, regard should be had to what the driver knew or ought reasonably to have known in all of the circumstances: McPherson [31].

The Magistrate's findings and reasons for decision

As already noted, the Magistrate found that the intersection, at the date of the collision, had all of the problems as described by Mr Burton and by the various reports put into evidence: (reasons for decision (RFD) at 15). These problems included the 'give‑way' sign tending to 'blend into other things' from a distance of 100 m, and the faded white line which 'did not help approaching motorists identify the intersection': (RFD, 10).
In finding that the intersection had the problems described by Mr Burton I understand his Honour to have also accepted the following evidence (as summarised at RDF, 10 ‑ 11):
Mr Burton said a driver should be able to pick up the Intersection from about 3 to 4 seconds away from it if travelling east along Haddrill Road.
However, Mr Burton said the view to the right of a driver travelling along Haddrill Road to the east towards Campersic Road was severely obstructed right up to the 'Give Way' signs by the vegetation in the adjoining paddock. Given that situation Mr Burton said a driver would have to stop at the Intersection to check for traffic travelling north along Campersic Road towards the Intersection.
As there was no independent eye witness to the collision the credibility of Mr Lyford's evidence as to his manner of driving was critical. In this regard, his Honour found that Mr Lyford was at times 'vague and assumptive' but otherwise 'gave his evidence to the best of his recollection': (RFD, 8). I understand this to be a finding that Mr Lyford was an honest but not necessarily reliable witness.
As to specific facts, his Honour found that Mr Lyford did see the 'give‑way' sign as he approached the intersection. That finding was based upon Mr Lyford's written statement, and was also 'the only reasonable inference that can be drawn from his oral testimony as to why he slowed down as he approached the intersection': (RFD, 13). Furthermore, his Honour found that Mr Lyford saw the intersection itself:
Clearly the objects the Accused saw ahead indicated the Intersection was approaching as he saw the 'Give Way' sign, the fence line, power lines, bushes and shrubs and drew the inference there was an Intersection ahead. Had the Accused not seen, either the 'Give Way' sign, or the fence line, power lines, bushes and shrubs indicating the Intersection was ahead he would not have had any reason to have slowed the Mercedes down (13).
There were further findings that Mr Lyford was travelling at a speed of 60 ‑ 65 km per hour along Haddrill Road, slowed to 40 ‑ 50 km per hour as he entered the intersection, and did not have a clear view to his right towards the direction from which the Ford was travelling until less than 10 m from the give‑way line: (RFD, 14).
His Honour also found that 'the colour of the Ford did contribute to the circumstances which led to the collision': (RFD, 14). (This finding implicitly accepts Mr Lyford's evidence that he did not see the Ford until moments prior to the collision.) As to the significance of the problems with the intersection as described by Mr Burton, his Honour held:
[T]here is nothing in that evidence that, upon the facts of this case, causes me to accept the manner of driving of the Accused was so attentive as not to amount to being dangerous to the public despite the topography of the Intersection and its environs.
The Accused on his own evidence was fully aware of what he was driving towards. The Accused saw the 'Give Way' signs from some distance, he was also aware he was approaching the Intersection by the 'Give Way' signs and the fence lines, he slowed his motor vehicle to between 40 & 50 km/hr, he was aware his vision to his right was obscured as he approached the Intersection and he was aware or should have reasonably been aware that he was unable to make an assessment as to whether there were any motor vehicles approaching from his right until he was less than 10 metres from the give way line.
However, despite the Accused being aware of all of those factors he drove the Mercedes into the Intersection at a speed between 40 & 50 km/hr not knowing whether or not a motor vehicle was approaching from his right.
This case is not a case in which it could be said the Accused did all that was reasonable in the circumstances. It is also not the case that it could be said it was physically impossible for the Accused to give way to the Ford despite the layout of the Intersection and the topography of the environs.
The Accused was aware for a considerable distance from the Intersection he could not see to his right. As the Accused drew closer to the Intersection he remained aware he could not see to this right and therefore he could not determine whether there was another motor vehicle approaching from his right.
I find the Accused could have and should have stopped at the 'Give Way' sign to enable him to determine if a motor vehicle was approaching the Intersection. Had the Accused done so, he would have been able to see the approaching Ford, notwithstanding the differential closing speeds of both the Ford and the Mercedes (15 ‑ 16).
After referring to the authority of McPherson, his Honour went on to find that:
[T]he manner of driving by the Accused as he approached and then entered the Intersection, when viewed objectively, was in a real sense dangerous to human beings who as members of the public were upon Campersic Road (17).
Accordingly, his Honour was satisfied beyond reasonable doubt that each and every element of each offence had been proved.

The merits of the appeal

There is no challenge on appeal to the Magistrate's findings that Mr Lyford saw the 'give‑way' sign, and saw the intersection as he approached the point of collision. However, there is a significant issue as to how far back from the intersection Mr Lyford first noticed these things, and in that regard, there was no particular finding by the Magistrate (other than that it was 'some distance' or a 'considerable distance').

Obviously, the evidence did not allow any specific finding as to the precise distance from the point of collision that Mr Lyford first noticed (or ought reasonably to have noticed) the intersection and/or 'give‑way' sign. However the issue which was critical to the question of guilt or innocence was whether this distance was sufficient for Mr Lyford to react and to take steps to avoid what occurred.
His Honour faced a difficult task in assessing this issue because, notwithstanding that Mr Lyford was found to be an honest witness, his evidence was based not on memory, but largely upon assumption and hindsight. In this respect, there was no direct evidence from Mr Lyford that he became aware of the intersection and of the obstruction to his view to the right in time to stop the vehicle and avoid any collision. Even his evidence during cross‑examination concerning the shrubbery and the electricity lines was clearly not an admission that he saw these things in time to stop.
The written statement by Mr Lyford soon after the collision was also of little help. That too was made with the benefit of hindsight and by reference to the scene of the collision which Mr Lyford had under observation at the time of making the statement.
Accordingly, Mr Lyford's assertion in that statement that 'I looked right and I looked left and I proceeded through the intersection' should not be construed as an implied admission that he had time to stop. The evidence showed that these actions by Mr Lyford occurred in the final moments before the collision and within a distance of perhaps 10 m while travelling at 40 ‑ 50 km per hour.
The findings which were relevant to the critical issue were that Mr Lyford 'drew the inference there was an intersection ahead' and 'was aware for a considerable distance from the intersection he could not see to his right'. As there was no direct evidence of these matters, the Magistrate must necessarily have arrived at the findings themselves by way of inference.
His Honour also made the more specific finding that as Mr Lyford approached the intersection 'he was aware or should have reasonably been aware that he was unable to make an assessment as to whether there were any motor vehicles approaching from his right until he was less that 10 metres from the give‑way line'. In my opinion, the evidence was incapable of providing any support for this particular inference. Until Mr Lyford actually arrived at the intersection, there was no way he could have known that he would only have a clear view to the right in the last 10 metres.
It is also my view, that on a careful analysis of the evidence as a whole, there is an alternative reasonable inference which is consistent with the proven facts. That alternative inference is that Mr Lyford did not observe the intersection (and could not reasonably have observed the intersection) until it was too late to stop. Such an inference is supported by the evidence of the unusual problems with the intersection and the trap that it posed to drivers travelling east in Haddrill Road. It is also supported by Mr Lyford's evidence that he reached the intersection and found himself 'inextricably involved in an accident'.
Given that there were competing inferences to explain Mr Lyford's particular manner of driving, and that one of these was consistent with his innocence, it follows that the Magistrate fell into error in being satisfied beyond reasonable doubt as to his guilt. It also follows that the first ground of appeal should be upheld.
As to the remaining grounds of appeal, I simply observe that there was no evidence of an honest but mistaken belief which would support the second ground. As to the third ground, I do not consider that the Magistrate was wrong in finding that it was necessary for Mr Lyford to stop at the intersection in order to give right of way. Even though the intersection was controlled by a 'give way' sign (and not a 'stop' sign), the evidence established that it was only possible to meet the obligation to give way by coming to a complete halt.
As to the fourth ground of appeal, his Honour's opinion that nothing in the facts of the case caused him 'to accept the manner of driving of the accused was so attentive as not to amount to being dangerous' did imply a reversal of the onus of proof. However, it is hardly likely that an experienced magistrate would ignore the burden of proof which always rests upon the prosecution. Accordingly, I think that this was simply an unfortunate example of infelicitous expression which did not detract from his Honour's understanding of the fundamental principles as to the onus and standard of proof.
For the above reasons the appeal will be allowed, and each conviction will be set aside.