Magorian v Lodge - [2011] WASC 147

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MAGORIAN -v- LODGE [2011] WASC 147

CORAM: MURRAY J

HEARD: 18 MAY 2011

DELIVERED : 31 MAY 2011

FILE NO/S: SJA 1010 of 2011

BETWEEN: DAVID HUGH MAGORIAN
Appellant
AND
MATTHEW JAMES LODGE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S R MALLEY
Citation  :MAGORIAN -v- LODGE
File No  :PE 11778 of 2010

Catchwords:

Criminal law and procedure - Dangerous driving causing death - Interpretation of statutory scheme - Lack of causation defence

Legislation:

Road Traffic Act 1974 (WA), s 59, s 59B

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Ms S Linton
Respondent: Mr K S Pratt

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Paiker & Overmeire

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

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jiminez v The Queen (1992) 173 CLR 572
McBride v The Queen (1966) 115 CLR 44
McPherson v Lucas [2008] WASCA 56
WA v Gibbs [2009] WASCA 7
WA v Olive [2011] WASCA 25
Warren v Coombes (1979) 142 CLR 531

MURRAY J: The appellant, a police officer, charged the respondent with the offence of dangerous driving occasioning death. It was alleged that on 26 July 2009, on Stirling Highway, Claremont, the respondent drove his motor vehicle in a manner that was, having regard to all the circumstances, dangerous to the public or to any person, and that he was involved in an incident occasioning the death of a Mr Smith, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) (the Act).
The respondent pleaded not guilty, and the trial was conducted in the Magistrates Court on 10 and 11 January 2011. On 12 January, his Honour gave his decision ex tempore. The reasons are well expressed. His Honour cites authority. It is clear that his Honour expended considerable effort in the preparation of his reasons. I shall return to them in due course. It is sufficient, at this stage, to note that the charge was dismissed and the respondent was acquitted.
This is a prosecution appeal. The grounds of appeal, as substituted at the hearing, are:
1.The learned Magistrate erred in fact in finding that the respondent's blood alcohol concentration was 0.12% at the time of the crash, given the finding was against the weight of the evidence given at the trial.
2.The learned Magistrate erred in law when determining whether the prosecution had established to the requisite standard that the manner of the respondent's driving was, in all the circumstances, dangerous to the public, by considering each of the following features of the respondent's driving in isolation rather than the evidence in its entirety:
(a)the respondent's level of alcohol intoxication;
(b)the speed at which the respondent was driving his vehicle immediately prior to the incident; and
(c)the movement of the respondent's vehicle immediately prior to the incident.
3.The learned Magistrate erred in law by considering matters relevant only to the defence pursuant to s 59B(6)(b) of the Road Traffic Act 1974 (WA) when determining whether the prosecution had established beyond reasonable doubt that the manner of the respondent's driving was, in all the circumstances, dangerous to the public.

The law

So far as material, s 59 of the Act is in the following terms:
59. Dangerous driving causing death, injury etc.
(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 -
(a)while under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle; or
(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 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
(c)when an incident occasions grievous bodily harm to a person and that person receives surgical or medical treatment, and death results either from the harm or the treatment, the incident is deemed to have occasioned the death of that person, although the immediate cause of death was the surgical or medical treatment if the treatment was reasonably proper in the circumstances and was applied in good faith.
That enactment dates from the Road Traffic Amendment (Dangerous Driving) Act 2004 (WA), which was proclaimed to come into operation on 1 January 2005 (Government Gazette, 31 December 2004, p 7130). The same amendments were made to s 59A of the Act in respect of the offence of dangerous driving causing bodily harm.
It is noteworthy for present purposes that s 59(2)(b) and s 59A(2)(b) were retained in the Act to prevent any possibility, in relation to causation, that the court might consider that fault, negligence or carelessness on the part of the person who died or suffered grievous bodily harm or bodily harm, might be relevant to the question whether the incident occasioned or caused the death or injury with which the case is concerned.
However, upon the re‑enactment of ss 59 and 59A in the manner referred to above, s 59B was inserted in the Act. The concept of an incident occasioning the death of, or grievous bodily harm or bodily harm to, a person is illuminated by the provisions of s 59B(1) and (2) as follows:
(1)For the purposes of sections 59 and 59A, the circumstances in which a motor vehicle is involved in an incident occasioning the death of, or grievous bodily harm or bodily harm to, a person include those in which the death or harm is occasioned through -
(a)the motor vehicle overturning or leaving a road while the person is being conveyed in or on the motor vehicle (whether as a passenger or otherwise); or
(b)the person falling from the motor vehicle while being conveyed in or on it (whether as a passenger or otherwise); or
(c)an impact between any object or thing and the motor vehicle while the person is being conveyed in or on the motor vehicle (whether as a passenger or otherwise); or
(d)an impact between the person and the motor vehicle; or
(e)an impact of the motor vehicle with another vehicle or an object or thing in, on or near which the person is at the time of impact; or
(f)an impact with any object on or attached to the motor vehicle; or
(g)an impact with any object that is in motion through falling from the motor vehicle.
(2)For the purposes of sections 59 and 59A, a motor vehicle is also involved in an incident occasioning the death of, or grievous bodily harm or bodily harm to, a person if the death or harm is occasioned through the motor vehicle -
(a)causing an impact between other vehicles or between another vehicle and any object, thing or person; or
(b)causing another vehicle to overturn or leave a road; or
(c)causing a person being conveyed in or on another vehicle to fall from that other vehicle.
I note that the examples given in these subsections are included within the concept of an incident occasioning death, grievous bodily harm or bodily harm. These are provisions designed to extend the notion of an incident 'occasioning' or causing such an event. In other words, an incident is any occurrence which is causally linked to the death or harm suffered.
In this case, the respondent's vehicle struck the deceased and threw him to the ground, as a result of which he suffered the injuries which caused his death. There could, in those circumstances, be no doubt that the motor vehicle driven by the respondent was involved in an incident occasioning the death. The death resulted from the impact between the deceased and the motor vehicle (s 59B(1)(d)), whether the death was caused directly as a result of the impact or as a result of injuries received consequentially upon the occurrence of the impact.
Potentially material to this case are the provisions of s 59B(6):
(6)In any proceeding for an offence against section 59 or 59A it is a defence for the person charged to prove that the death, grievous bodily harm or bodily harm occasioned by the incident was not in any way attributable (as relevant) -
(a)to the fact that the person charged was under the influence of alcohol, drugs, or alcohol and drugs; or
(b)to the manner (which expression includes speed) in which the motor vehicle was driven.
In other words, if dangerous driving is proved, and at that time the vehicle being driven dangerously is involved in an incident, within the natural meaning of that word, or the extended meaning for which provision is made in s 59B(1) and (2), the proper conclusion will be that the incident occasioned or caused the death or harm which occurred. The contribution of the deceased or injured person to the occurrence of the death or harm suffered will be immaterial or irrelevant.
However grave might have been the failure to take proper precautions to prevent the death or harm, it will never be held to have broken the statutory chain of causation between the driving, the resulting incident and the death or harm. Nor can there be any question of the commission of the offence being avoided by having regard to the contribution made to the death or harm by some other person (not the defendant or the victim), whether that person be the driver of another motor vehicle or otherwise involved.
The defence under s 59B(6) will not arise unless the defendant proves (on the balance of probabilities) that there was no causal link between the incident which resulted in the death or harm suffered and the dangerous driving. The final outcome of death, grievous bodily harm or bodily harm must be, 'not in any way attributable' to the dangerous driving. There must be no causal link between the two.
For completeness, I note that s 59B(6) carries forward from s 59(1) and s 59A(1) the separate reference to driving the vehicle in a dangerous manner, and the new reference to incapacity to properly control the vehicle while under the influence of alcohol, drugs, or both. Section 59B(5) provides:
(5)In any proceeding for an offence against section 59 or 59A a person who had at the time of the alleged offence a blood alcohol content of or above 0.15g of alcohol per 100ml of blood shall be deemed to have been under the influence of alcohol to such an extent as to be incapable of having proper control of a motor vehicle at the time of the alleged offence.
It will be seen that this is a statutory deeming provision. The blood alcohol content of or above the prescribed level is unarguably converted into the incapacity. I add that, as will be seen in this case, that provision could not be, and was not, relied upon by the appellant. The relevant blood alcohol content was substantial, but insufficient to meet the statutory requirement which would convert driving a vehicle with that blood alcohol content directly into dangerous driving.
However, s 59(1) and s 59A(1) create an offence of dangerous driving which may be committed in either of the two ways (or indeed by both together) specified in paragraphs (a) and (b). In this case, as has been seen, the prosecution notice charged the offence as having been committed contrary to s 59(1)(b). Such a particularisation of the manner of committing the alleged offence was perfectly proper, but it did not make irrelevant evidence which was led as to the respondent's blood alcohol content, or the likely effect of that level of intoxication, upon the respondent's driving skills and the manner in which he drove the vehicle.
There have been many cases decided over the years in which courts in this and other Australian jurisdictions have sought to make clear the meaning and effect of the dangerous driving offences created by s 59 and s 59A or their equivalents. Because of changes to the legislation, some of the earlier decisions may need now to be approached with caution. But it is not necessary, for the determination of this appeal, to undertake a thorough analysis of the earlier decisions.
Jiminez v The Queen (1992) 173 CLR 572 concerned the offence of culpable driving defined by the Crimes Act 1900 (NSW), s 52A. That offence is stated in terms which are not materially dissimilar from the provisions of ss 59 and 59A of our Road Traffic Act. In that case it seems that the driver had fallen asleep at the wheel. The High Court held that although, if the driver was asleep, there could not be said to be a voluntary act of driving at that time, nonetheless, as the majority (McHugh J delivering separate reasons) put it:
Even if the motor vehicle was not being driven dangerously at the precise moment of impact, a preceding period of driving in a dangerous manner may be so nearly contemporaneous with the impact as to satisfy this element of the offence. Contemporaneity is a question for the jury (578).
By way of elucidation of the requirement that the driving be in a manner dangerous to the public or to any person, the majority said that that was, 'a matter of objective fact' (579). By that, I think, in this context is simply meant that it is a matter to be judged objectively by the tribunal of fact. It is not a matter of the perceptions or judgment of the driver. Their Honours said:
For the driving to be dangerous for the purposes of s 52 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. Although a course of conduct is involved it need not take place over any considerable period. Nor need the conduct manifest itself in the physical behaviour of the vehicle. If the driver is in a condition while driving which makes the mere fact of his driving a real danger to the public, including the occupants of the motor vehicle, then his driving in that condition constitutes driving in a manner dangerous to the public (579).
In so holding, the court applied earlier decisions, particularly McBride v The Queen (1966) 115 CLR 44, 50 and 51. McLure JA, Wheeler and Miller JJA agreeing, referred to Jiminez with approval when construing the offence defined by s 59A of our Act: McPherson v Lucas [2008] WASCA 56. Reference should also be made to WA v Gibbs [2009] WASCA 7 per Steytler P [25] ‑ [30], McLure and Miller JJA agreeing, and to WA v Olive [2011] WASCA 25, per Buss JA [27], McLure P and Mazza J agreeing.
I summarise my views about the elements and requirements of proof of the offence charged, having regard to the allegations in this case. They are:
1.The respondent was the driver of the motor vehicle at the time when it was involved in the incident which was the impact between the motor vehicle and Mr Smith.
2.As a result of that incident Mr Smith was killed.
3.Contemporaneously with the occurrence of that incident, the respondent's manner of driving the vehicle was dangerous to the public, including Mr Smith. Regard was to be had to all the circumstances surrounding and affecting that manner of driving.
4.It was immaterial that the death might have been avoided if Mr Smith had not attempted to cross the road in the path of the oncoming motor vehicles.
5.If those matters were proved against the respondent, he would only be acquitted if he persuaded the court that, more probably than not, the death was not in any way caused by the dangerous manner of his driving.
In this case, the respondent was acquitted. His Honour the magistrate held that the manner of driving had not been proved to the required standard to be dangerous within the meaning of the Act. It was therefore not necessary for his Honour to consider the availability of the defence provided by s 59B(6).

The magistrate's decision

I shall endeavour to set out the essential portions of his Honour's judgment, omitting his review of the evidence at this stage, and omitting his Honour's reference to some of the decided cases. His Honour gave the following reasons for his conclusion that he was not satisfied to the requisite standard that the respondent's driving was dangerous to the public or any person:
I find as matters of fact that the accused was driving his motor vehicle on Stirling Highway, going south-west in Claremont in the right lane, going up a gentle incline. I find at the same time that Mr Paul Fong was in the left lane ahead of the accused with his brother in another vehicle behind him. I accept Paul Fong's evidence that he was doing 60 kilometres an hour, the speed limit. The road is a dual‑lane highway. I accept it was a Sunday morning with light traffic and good visibility. I accept that there was a white vehicle in the right‑hand lane some three car lengths in front of Paul Fong's vehicle doing around about the same speed. I find that the accused was doing a speed in excess of the speed limit, in the vicinity of 70 to 75 kilometres an hour, and I find that he had a blood alcohol level of 0.12 per centum. I find that as the white vehicle and Paul Fong's vehicle approached the location around Richardson Avenue, Mr Smith, a 90‑year‑old gentleman, had moved from the north-west side of Stirling Highway onto the median strip and, having looked towards oncoming traffic, moved out onto the right‑hand lane of the south-west direction lanes. I find that as he undertook this act, the accused's vehicle approached in the right‑hand lane at a speed as found, and that speed would have been a greater speed than that of the white vehicle. He then proceeded to change lanes from the right lane to the left lane.
I find that there is no evidence that the accused was aware of the presence of Mr Smith prior to impact. I find that the evidence of Mr Paul Fong confirms that the manner of changing lanes by the accused was in an appropriate manner and was done without interference to any other vehicle. I find that, having changed lanes, the accused was confronted by the presence of Mr Smith, and by reason of the presence of the white vehicle and the short distance between he and Mr Smith at that point of time, despite having braked, a collision occurred and resulted in Mr Smith's death.
As I have previously stated, I would accept that to a lay person, the presence of alcohol of .12 per centum would axiomatically lead to a presumption of lack of control, however below 0.15, this is not the case. There requires more evidence from the prosecution that the manner of driving was affected by the presence of alcohol. That depends, as stated by Professor Joyce, on all the circumstances. Facts such as the failure to brake adequately or appropriately, et cetera, may be factors taken into account (ts 6 ‑ 7).
With regard to the speed, the evidence suggests that the accused was breaching the road rules, doing 70 to 75 kilometres an hour. In the case of speed creating a danger, it is a case of time, place and circumstances. This is a Sunday morning, 11 am, good visibility, light traffic. Whilst it was an offence - and I do not accept that the speed is acceptable, but at the same time, in my view, it would not, in all the circumstances, to do a speed of 70 to 75 kilometres an hour, in those circumstances, in itself amount to dangerous driving (ts 7).
Given my findings as to the impact of alcohol, given my findings as to the impact of speed and given the evidence as to the manner of changing lanes was uncontroversial - in other words, it was not violent or created a danger to other road users in itself - the prosecution case falls to the fact that the accused drove inattentively and thereby created a danger to the public in that he failed to observe Mr Smith until immediately prior to the collision.
What we do know is, the accused was in the right-hand lane behind a white vehicle which the accused says blocked his view as to Mr Smith's presence. His view was not the view of the Fongs and it can't be concluded because they saw the deceased that the accused should have had the same view. We don't know the size of the white vehicle. Certainly Mrs Mitchell didn't see him, the presence of Mr Smith when she was in the left lane or in the right lane. I am unable to conclude that the accused wasn't keeping a proper lookout.
I am unable to conclude that the white vehicle, because of its position on the road, hid the presence of the pedestrian such that when he stepped off onto the highway his presence would have been hidden from the following or overtaking vehicle as it caught up. It is of note that even if the accused had been doing the speed limit at the time of the manoeuvre, the expert evidence is that the same outcome was likely (ts 9 ‑ 10).

I turn back to the grounds of appeal with which I introduced these reasons. I propose to give leave in respect of each ground and, in general terms, I would uphold them.
As to ground 1, I think it is correct that his Honour the magistrate understated the respondent's blood alcohol content, having regard to the evidence of Professor Joyce. His Honour correctly noted that the evidence did not establish a blood alcohol content of or above 0.15%, but, although on any view of the actual blood alcohol content calculated pursuant to the statutory scheme, the respondent was driving with a high level of alcohol in his blood, his Honour does not seem to have considered the unchallenged evidence of Professor Joyce as to the significance of such a blood alcohol concentration in relation to making a finding about the contribution of the level of intoxication to the manner of the respondent's driving.
In other words, I would uphold ground 1, but it will be necessary to see what impact, if any, the consideration of the respondent's level of intoxication ought to have had upon the magistrate's conclusion that the respondent was not established to have been driving dangerously, within the meaning of the Act.
I would not uphold ground 3, if it is a complaint that the magistrate confused the statutory scheme by converting a conclusion that the respondent had established that the death was not in any way attributable to the manner in which the motor vehicle was driven, into a conclusion that the manner of driving was not dangerous. I do not think, upon a fair reading of the whole of his Honour's reasons, that ground can be made out.
His Honour, as has been seen, did say that had the vehicle been driven as it was, but at a speed of 60 kph rather than between 70 kph and 75 kph, 'the same outcome was likely' (ts 10). That is hardly an observation upon the defence provided by s 59B(6), and I have quoted portions of his Honour's reasons where he appears, quite clearly, to give attention to the matters upon which the appellant relied to support the conclusion that the respondent drove his vehicle dangerously.
This brings me to ground 2, which I would uphold, although I would not espouse the proposition which is part of the complaint made by that ground that in considering whether the manner of the driving was dangerous, his Honour compartmentalised the various factors thrown up by the evidence and failed to consider the evidence in its entirety.
Nonetheless, I am of the view that his Honour erred in his failure to conclude that the evidence which he accepted established that the driving was dangerous, in the sense referred to in the Act and discussed in Jiminez at 579, which I have quoted above and to which his Honour the magistrate referred himself (ts 7).
The manner of driving will be dangerous to the public or to any person if, having regard to all the circumstances, those affecting the driver's capacity to control the vehicle, those demonstrating how the vehicle was driven and the speed at which it was driven, and those surrounding physical circumstances which reveal the significance of the manner of driving, there were one or more features which reveal that the public or the person affected by the driving was subjected to a risk over and above that ordinarily associated with the driving of a motor vehicle on the public road.

The proper approach to this appeal

In effect, I have reached the conclusion that, with respect to his Honour the magistrate, on the evidence which he accepted and having regard to the facts as he found them to be, he was obliged to conclude that the manner of driving was dangerous.
To reach that conclusion I have had to thoroughly review the evidence accepted by the magistrate and to consider what, upon that evidence, would seem to me to be the incontrovertible facts. In doing so, I have paid due regard to the fact that I have not had the advantage, as the magistrate did, of seeing and hearing the witnesses give their evidence. I must be careful not to usurp the role of his Honour as the trial judge.
However, I am comforted, in relation to that aspect of my task, by noting that, except with respect to aspects of the account given by the respondent when he was interviewed by investigating police officers, particularly the appellant, the magistrate's decision about the reliability of witnesses does not depend upon their demeanour and the manner in which they gave their evidence, but the accuracy of their accounts is accepted, noting that the accounts of some of the witnesses were understandably more limited than those given by others.
I remind myself of the guidance given to appellate judges by the High Court after reviewing a long series of cases, perhaps commencing with Dearman v Dearman (1908) 7 CLR 549, including the important decision in Warren v Coombes (1979) 142 CLR 531, in the case of Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, per Gleeson CJ, Gummow and Kirby JJ, at 126 ‑ 129 [25] ‑ [31].
In short, I am obliged to conduct a real review of the evidence at trial and the reasons given by the trial judge. I must pay due regard to the primacy of the position of the trial judge in the way to which I have referred above. But if I consider (as I do) that in this case his Honour has erred in the conclusion he has reached, I must give effect to the conclusion to which I have come upon the rehearing which I have undertaken.

The evidence reviewed

The deceased Mr Smith was a 90‑year‑old man. His death was a direct result of being struck by the motor vehicle driven by the respondent on 26 July 2009. Mr Smith suffered multiple injuries when he was struck by the vehicle. His cervical spine was fractured. His skull was fractured. There was cerebral trauma. He suffered fractured ribs, a fractured sternum and fractured pelvis. His left forearm was fractured, and he suffered multiple soft tissue injuries. His death resulted from the injuries he received.
He was struck while crossing Stirling Highway in Claremont. It was a Sunday morning, and the time was about 11.15 am. Traffic was light. Visibility was good. In the area where Mr Smith was hit by the car, the road is aligned from slightly north of east to slightly south of west in the direction in which the respondent was travelling, the same direction of travel for the witnesses to whom I am about to refer. They were all occupants of motor vehicles. It will be convenient, for ease of reference, to describe the direction of travel as being from the east to the west, and so the sun was high in the sky, slightly behind the vehicles as they travelled along the road.
At the point of impact the road is straight. Stirling Highway is a four‑lane highway. The road is divided by a median strip. It is broken to permit vehicles travelling in a westerly direction to turn right into Parry Street. Shortly after the median strip resumes, vehicles travelling in a westerly direction may turn left at an angle of about 30 degrees into Richardson Avenue. Almost immediately after crossing the intersection with Richardson Avenue one comes, about 12 m further down the road, to a point where there is a break in the median strip made for pedestrians to cross the road.
It was here that Mr Smith was crossing, from north to south, in other words, from the right to the left of vehicles travelling west. It was found that Mr Smith had almost completed his crossing of the road when he was struck by the vehicle driven by the respondent. The impact of the vehicle was to the left front. There is quite a bit of damage at that point of the vehicle, and also some shattering of the bottom left corner of the windscreen. It is very evident, from that damage and from the injuries that I have described, that the impact was one of considerable force. Mr Smith was not carried forward on the bonnet of the car. It appears he was flung up into the air and to the left of the vehicle. His body came to rest on the footpath just by the kerb at the crossing point.
The respondent's car was a black Holden Monaro coupe. It was fitted with an anti‑lock braking system which operated with the required efficiency, although under heavy or emergency braking pressure the right rear wheel would lock. The vehicle examiner's report suggested that that might cause the vehicle to fail to stop as quickly as it would otherwise be expected to do. But there is no suggestion that that problem made any contribution to Mr Smith being struck by the vehicle while it was still travelling at some speed.
On the surface of the highway, in the kerbside lane for a vehicle travelling west, just to the left of the broken line dividing this side of the carriageway into two lanes, a tyre mark, freshly made, consistent with a wheel being locked up, was observed immediately after the accident. All the evidence would support the finding that it was made by the right rear wheel of the respondent's car.
It commences at about the alignment of the eastern kerb of Richardson Avenue, and so at a point when the respondent's car would have been crossing the T-junction formed by Richardson Avenue and Stirling Highway. It was 16.3 m in length and virtually parallel to the broken line. Then, at the point where Mr Smith was crossing the road there is a short break in the line of about 5 m before it resumes for a length of 8.1 m, where the line curves to the left towards the kerb on the south side of Stirling Highway. It seems that the respondent's motor vehicle came to rest, after a process of controlled braking, some 25 m further along the road. For vehicles travelling in a westerly direction, from well back before the point of impact there is a slight upward gradient in the road.
A Ms Mitchell gave evidence that she was driving in a westerly direction along Stirling Highway some distance back from the point of impact, with no vehicles ahead of her, when she was passed quite quickly by the vehicle which proved to be that of the respondent. It gave her a bit of a fright because she thought that it passed her too close, the left side of that vehicle intruding into the kerbside lane where she was travelling by some 6 inches. She did not give an estimate of the speed of the vehicle then or later, but she said it got ahead of her quite quickly and she estimated her speed to be 65 kph.
After it passed her it moved quite normally back into the kerbside lane. It was the only vehicle she saw in front of her. She prepared to turn right into Eric Street (past the point of the accident) by moving into the inside lane. As she drove along, she saw the deceased, obviously struck by the respondent's vehicle, fly into the air before falling to the ground. She had not seen the deceased before that. She did not see brake lights on the respondent's vehicle.
It is apparent, therefore, that her account was a partial one, but so far as her evidence went, it was accepted by the magistrate, although, as has been seen, he thought it provided little information relevant to the question of dangerous driving at or just before the point of impact. It should be noted, however, that according to Ms Mitchell, the impact occurred a very short time, only a matter of seconds, after the respondent's vehicle had passed her. By that time, at the point where the deceased was struck, the respondent's vehicle was perhaps ten lengths, or a little further, in front of her. After the incident, at the scene, she went to speak to the respondent and noted that he smelled very strongly of alcohol.
His Honour seems to have considered that Ms Mitchell did not see everything that was going on ahead of her just before the accident because she was changing lanes herself and was checking her rear vision mirrors to ensure that it was safe to do so.
There were, in fact, two other cars travelling west ahead of Ms Mitchell. The first vehicle was being driven by a Mr Paul Fong. He had a passenger, his partner Ms Oitmaa. She was seated in the front passenger seat. She estimated the speed of their vehicle at between 50 ‑ 60 kph. They were travelling in the kerbside lane and she was conscious of a white vehicle in the inside lane, some two to three car lengths in front of them. It was travelling at about the same speed.
She observed Mr Smith standing in the median strip, looking in the direction of the oncoming vehicles. He stepped off and commenced to cross the carriageway from their right to their left. She had some concern that he may have misjudged the amount of time he had to cross the road, not so much having regard to their vehicle, but to the white vehicle in front of them and to their right. Mr Smith went from her view, behind the white vehicle, when he commenced to cross the road.
She then saw the respondent's vehicle passing them on the right. When she first saw it, it came into view through the windscreen, about half a car length in front of them. She could not estimate the speed of that vehicle, but said it was going faster than they were. As soon as it got past them, it moved into the left‑hand lane in front of them.
Almost immediately, within a couple of seconds only, the vehicle hit Mr Smith, who flew through the air and landed on the side of the road. She had no recollection of seeing the respondent's vehicle brake before the impact. It stopped some 30 metres up the road, she said. Looking at the plan, her estimate of that distance is accurate, which would give some confidence about her other estimates of distance.
It is clear that everything happened quickly. She said it took a couple of seconds, 5 seconds at most, from the point where the black car driven by the respondent pulled in front of them to the impact. I cannot imagine that Mr Smith could not have been directly in front of the respondent for the whole of that short period of time, given that he was a 90‑year‑old man walking across the road in front of the respondent's car, which was travelling at a speed of at least 72 kph until immediately before the impact occurred, and given the part of the respondent's car which hit Mr Smith.
That impression is reinforced by the evidence of the driver of Ms Oitmaa's vehicle, Mr Paul Fong. He gave the speed of his car at 60 kph. He knew that to be the case because he had the cruise control operating. He agreed they were travelling in the kerbside lane. He was aware of one or two vehicles travelling at about the same speed ahead of him, but in the inside lane. He saw Mr Smith as he stepped off from the median strip and commenced to cross the carriageway in front of them. He thought for a moment that he might have to slow to allow Mr Smith to complete his crossing of the road. But later in his evidence he said he thought that Mr Smith would have managed to cross the road without Mr Fong having to slow his vehicle. Mr Smith was walking slowly. He was an old man.
Mr Fong was aware of a vehicle driven by his brother immediately behind him in the kerbside lane. Through his rear vision he was also aware of the respondent's vehicle in the inside lane, catching up to them and then overtaking them. As it passed at a speed which Mr Paul Fong through was somewhere between 10 and 20 kph faster than they were travelling, it accelerated and changed lanes into the kerbside lane, immediately commencing to pass the white vehicle or vehicles which were ahead in the inside lane.
As it did so, given the speed of the respondent's vehicle and where Mr Fong judged Mr Smith was on the road, he felt certain there would be an accident. He saw smoke come from the right rear tyre of the respondent's vehicle. It stopped, the smoke came again, and he saw Mr Smith struck, fly into the air and fall to the ground on the kerb. He had no recollection of seeing brake lights on the respondent's vehicle, but his description of seeing the smoke is certainly consistent with the right rear wheel of the car locking under emergency braking, and his description is consistent with the marks on the road and their position.
Again, this evidence, which was accepted by the magistrate, provides a clear indication of the speed of the events and the inevitability of an accident once the respondent changed into the kerbside lane, saw Mr Smith immediately in front of him, had no capacity to move to the right because of the white vehicle that he was overtaking, and had no capacity to move to the left because of the kerb. Mr Paul Fong said the respondent was travelling at a 'fairly significant speed' (ts 10/1/2011, p 50).
The vehicle following that occupied by Mr Paul Fong and Ms Oitmaa was driven by his brother David. His passenger was Mr Victor Fong, David and Paul's father. I will not spend time discussing their evidence which, again, was accepted by the magistrate. Their description of the way in which the respondent passed them was consistent with the other evidence. Their view of what happened in front of Mr Paul Fong's vehicle was somewhat obscured by that car, certainly after the respondent changed from the inside lane to the kerbside lane.
The other eyewitness was a Ms Jones, who was travelling in the opposite direction along Stirling Highway. Mr Smith crossed her side of the road in front of her, to the median strip. She saw him pause at the median strip before stepping out to cross the other side of the road. There were vehicles approaching and she passed the point where Mr Smith was crossing the road. The accident therefore happened behind her and she did not see it.
The respondent declined to give evidence at the trial, but he had been interviewed shortly after the event by the appellant and another police officer. The interview was recorded. He said that at the time, he was driving home. He had stayed at a friend's overnight. They had been out nightclubbing. He had his last alcoholic drink at around 2 am that morning, something over 9 hours before he was involved in the accident.
The respondent said he had not taken note of his speed, but he admitted that he would have been travelling at somewhere around 70 kph, perhaps 75 kph. He agreed that he passed other vehicles and that he was travelling in the inside lane. He came up behind a vehicle which he thought was white. He said he could not see what was on the other side of this car, apparently because the seating position in his car is quite low to the road. As he came up behind the other vehicle it braked and slowed quite markedly. He did not know why it had done so.
He said he signalled to change into the kerbside lane. None of the prosecution witnesses saw that, if it happened. The magistrate made no finding about it. Nor was there any evidence that the white vehicle ahead of the respondent braked, as he said, 'quite heavily', or indeed at all. The magistrate found that although the driver of that vehicle (who, of course, did not give evidence) 'may have touched his brakes' (ts 6), there appeared to be no reason for that vehicle to brake heavily and his Honour found it did not do so. It is evident, therefore, that his Honour rejected what the respondent about this when interviewed, as an accurate and truthful account.
The respondent told the police that, having indicated that he was changing lanes to the left, he checked his 'blind spot', saw there was nothing there and then made the manoeuvre. I take it that the respondent either turned his head to the left to look behind him or used the rear vision mirror on the left‑hand side of the car. Presumably he was looking at an area immediately behind and to his left where there may have been a vehicle that he could not see through his internal rear vision mirror.
The respondent said that having done that and changed lanes, he then, for the first time, saw Mr Smith directly in front of him. Mr Smith must, by then, have been very close to the front of the respondent's car and in the centre or to the left‑hand side of the kerbside lane, from the respondent's point of view. Wherever he was precisely, the respondent said that he could not move to the right to go around behind Mr Smith because of the presence of the other vehicle which he was passing on its left. Nor could he go to the left because of the kerb. He braked as heavily as possible, but he could not stop, and it was then Mr Smith was struck. It all happened very quickly, he said.

It is evident that the respondent could not see the road ahead or what, if anything, was on it, until he looked ahead, having changed into the kerbside lane. The respondent himself made it clear that, until then, his vision forward was blocked by the white car in the inside lane.
The respondent was breath tested. He had a blood alcohol content of 0.13%, over 9 hours after his last drink. A calculation back was done in accordance with the formula laid down in the legislation. But for some reason, perhaps uncertainty as to the accuracy of the respondent's recollection of the time of last drink, the police used as that time, the time of the accident. Under the formula, from the level of intoxication achieved by the time of the last drink containing alcohol, the blood alcohol content rises at the statutorily determined rate for a period of 2 hours before it commences to fall. That calculation caused a reduction of the estimated blood alcohol content as at the time of the accident to 0.12%.
Expert evidence was given by Professor Joyce, a physician and clinical pharmacologist and toxicologist at the QEII medical centre. He was asked to do the calculation upon the basis that the time of the respondent's last drink containing alcohol was indeed 2 am. On that basis, the blood alcohol content rose to 0.14%, closer to the statutorily significant 0.15% to which s 59B(5) of the Act refers, deeming a blood alcohol concentration of or above that level as establishing incapacity to have proper control of a motor vehicle.
The magistrate accepted, because it was 'common ground' that the time of last drink was indeed about 2 am. Nonetheless, his Honour declined to accept that as at the time of the accident the blood alcohol content was 0.14%. He said he preferred to act upon the 0.12% because, 'the only reliable figure is that which has been statutorially established' (ts 2). With respect to his Honour, that, of course, overlooks the manner in which Professor Joyce reached the 0.14% figure.
It will be recalled that the appellant complains about this aspect of his Honour's reasons by ground 1, about which I have already made some observations. In relation to the question of the level of intoxication, his Honour said that although, 'the presence of alcohol may well have contributed to the [respondent's] driving and speed in excess of the limit' (ts 3), there was no evidence to suggest that he had driven erratically or that, 'anything in the lane change manoeuvre was inappropriate' (ts 3). Of course, I have noted that his Honour did not make findings reflecting the detailed description of that process given by the respondent when he was interviewed by the police.
His Honour concluded:
I find that there is no tangible evidence that could lead one to conclude that [alcohol] caused the manner of driving to be dangerous and contributed to the death. It is not suggested that his reaction rate was impaired to the extent that he might otherwise have avoided the conditions. Nor have I said that the changing of lanes was done in a manner that was dangerous or contributed to the death (ts 4).
Professor Joyce's evidence did, however, discuss the significance, in relation to the nature of the driving and the exercise of proper control over the vehicle, that alcohol intoxication of this level would have. In his report, which was admitted into evidence as exhibit 6, he expressed the opinion that the respondent's blood alcohol concentration, 'indicates driving impairment and an increased accident risk'. The report discusses these matters in more detail. I will set out the relevant sections, omitting the reference to reported studies. He said:
Alcohol impairs driving ability through impaired judgement, false confidence, impaired visual tracking and delayed reaction time, sleepiness, inattention, incoordination and aggression. At elevated blood alcohol levels, drivers are less cautious in their driving, less attentive to risks on the road and slower in responding to an emergency.
People are affected differently by the same blood alcohol concentration. Those who are accustomed to a lot of alcohol are less impaired than those who drink little. Hardened drinkers may appear unimpaired at quite high blood alcohol concentrations. However, deterioration occurs rapidly, even in the case of hardened drinkers and experienced drivers, as blood alcohol levels rise above 0.10%. It is accepted that driving impairment is present in everyone with a blood alcohol concentration of 0.10% or above, regardless of drinking experience.
When cross‑examined, Professor Joyce did not resile from this expression of opinion. He said that to exhibit that level of alcohol intoxication 9 hours after the consumption of the last drink showed that the respondent must have started 'with very formidable blood alcohol' (ts 10/1/2011 p 38). However, he conceded that that level of intoxication would not lead one automatically to conclude that any accident in which the person was involved was related to the level of intoxication. As Professor Joyce said to the magistrate in answer to a question by him, 'There are some accidents that even the sober can't avoid' (ts 10/1/2011, p 39).
In my opinion, Professor Joyce's evidence needed more careful analysis because I think it was unarguable that, in a number of ways to which I shall return in more detail shortly, the very high level of intoxication of the respondent was obviously related to the quality of the driving, the nature of the manoeuvre undertaken, its dangerousness, as well as the capacity of the respondent to avoid the accident which occurred.
There was a conflict of evidence as to the speed at which the respondent drove his car. He called an expert in motor vehicle accident reconstruction, a Mr Davey. The conclusion to which he came, by analysis of the crash scene in the context of the statements made by the witnesses, was that at the time of the accident the speed of the respondent's vehicle was about 60 kph or less. His Honour rejected that evidence, describing the view so expressed as 'frankly embarrassing to [Mr Davey's] reputation' (ts 5).
His Honour preferred the evidence given by the appellant, who was an accredited expert in motor vehicle crash reconstruction, having regard to the nature of the vehicle, anything significant about it (eg, in this case the tendency of the right rear wheel to lock under emergency braking), statements of witnesses and, most particularly, the evidence presented by the scene of the accident itself.
The appellant's expertise was accepted, and his Honour took his report into evidence. He calculated the speed of the respondent's vehicle to have been a minimum of 72 kph at the point where the skid mark commenced. He was unable to say by how far, if at all, the speed so estimated may have been exceeded. The appellant went on to say that because of the incapacity to say precisely where the point of impact with Mr Smith occurred, he was unable to say what speed the respondent's vehicle might have been doing at the point of impact.
I have already said that, in my view, the evidence led clearly to the conclusion that the force of the impact with Mr Smith was very considerable and, over the very short braking distance and period of time involved, I would have no doubt that the evidence as a whole would support the conclusion that the respondent was able to achieve only a relatively minor reduction in speed.

My conclusion

I have made it clear that I consider that there was a miscarriage of justice in this case because, with respect to his Honour, I consider that the conclusion to which he came, that it was not established beyond reasonable doubt that the respondent's driving was dangerous within the meaning of the Act, because it was of a kind which subjected the public, and Mr Smith of course, to risk over and above that which would ordinarily be associated with the driving of a motor vehicle.
The respondent's state of intoxication was considerable. While it did not reach the level which would deem him to be incapable of driving the vehicle properly, it was very close to that level. It was undoubtedly the case that his intoxication would have given the respondent a degree of confidence about his driving capacity which was not warranted. There was evidence, in the manner in which, very shortly before the accident, the respondent passed Ms Mitchell that his 'visual tracking' capacity, to use the terminology of Professor Joyce's report, was impaired.
He was less cautious and less attentive to the risks of the road. He would undoubtedly be slower to respond to the emergency presented by the appearance of Mr Smith in front of him and would have had delayed reaction time. Professor Joyce's evidence was that it mattered not how hardened a drinker the respondent may have been. In any event, to my knowledge, the evidence, including his statements to the police, would not have enabled one to describe him as a hardened, rather than a regular, drinker of beer.
Although his driving was certainly not erratic, he exhibited impatience. When he came up behind the white vehicle, he apparently made a quick judgment to pass it on the left. Whether that vehicle did, in fact, brake or reduce its speed to any degree, seems to me not to be to the point. It seems that the respondent perceived that to be the case, but that may have been because of the greater speed, about 15 kph greater, and the rapidity with which he would have closed up to the vehicle in front.
His judgment that he could safely go to the left, in the limited space of a few car lengths between the rear of the car in front and the front of Mr Paul Fong's vehicle, must have been virtually instantaneous. It seems to be clear that he judged that he had room to get in front of Mr Fong, and he looked to see if there was any other impediment to moving left in his 'blind spot'. That distracted his attention from the road ahead. There is no evidence that he took the time to indicate that he was changing lanes to the left. He simply made the manoeuvre. Mr Paul Fong said he accelerated to do so.
By the time the respondent looked up, as I have already said, he must have been very close to Mr Smith indeed. He was certainly already passing the white vehicle. The physical evidence and the evidence of the witnesses, Mr Paul Fong and Ms Oitmaa, establishes that, given some delay to the respondent's reaction time, he would have had little time, after he registered the presence of Mr Smith ahead of him, to do more than apply the brakes as hard as he could, over the short distance involved, with no capacity to bring the vehicle to a halt, and he had left himself no capacity to avoid hitting Mr Smith by moving his car to the left or the right.
The dangerous quality of his driving is perhaps best expressed by describing the respondent's change of lanes as an impatient manoeuvre, made to avoid reducing his speed, without having the capacity to see that the road ahead was clear before the manoeuvre was made. His inattention to the road ahead, although no doubt merely momentary, was fatally dangerous.
His Honour the magistrate, of course, did not get to the point of considering whether the case was one where the respondent had established that it was more probable than not that Mr Smith's death was not in any way attributable to the dangerous manner in which the respondent drove his motor vehicle. Upon the view to which I have come, it is necessary that I should give consideration to the availability of that defence.
In my opinion, it could not be made out. The dangerous quality of the driving lay in the decision to change into the kerbside lane and the execution of that manoeuvre, together with the creation of an incapacity to avoid hitting Mr Smith. That being so, that dangerous driving undoubtedly played a major causal role in bringing about Mr Smith's death.
I have said that I would grant leave to appeal on the substituted grounds. The appeal is allowed. The order made by the magistrate dismissing the appeal is set aside. I substitute judgment of conviction of the offence of dangerous driving causing death.
No doubt there were disbursements incurred by the prosecution before the magistrate, but I propose to ignore them. However, I do order that the respondent should pay the appellant's costs of the appeal to be taxed if not agreed.
So far as the final disposition of the prosecution is concerned, I could, of course, proceed to sentence the respondent for the offence of which I have convicted him: Criminal Appeals Act2004 (WA), s 14(1)(d). However, to do so I would need to reopen the proceedings on the appeal and hear submissions as to penalty. It would be just as expeditious, I am sure, and it would involve no greater expense, if that task was performed by his Honour the magistrate. I will therefore remit the case to his Honour to be further dealt with by way of sentence according to law.
Upon the publication of these reasons, the orders I have foreshadowed will take effect. I ask the parties to file an agreed minute of final orders to give effect to these reasons. It would be desirable if the costs could be agreed, and if the minute would include any consequential orders required to secure the appellant's appearance before the Magistrates Court for sentence, at a time convenient to both parties.