Mazza v Haime - [2000] WASCA 42

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: MAZZA -v- HAIME [2000] WASCA 42

CORAM: HEENAN J

HEARD: 1 FEBRUARY 2000

DELIVERED : 29 FEBRUARY 2000

FILE NO/S: SJA 1163 of 1999

BETWEEN: SHANE VICTOR MAZZA
Appellant
AND
MARTIN HAIME
Respondent

Catchwords:

Traffic offences - Reckless driving - Motor cyclist with pillion passenger - Speed - Approximately double speed limit - Travelling partly through built up area - Offence requiring advertence to likely consequences of dangerous manner of driving

Legislation:

Road Traffic Act 1974 s 60(1)

Result:

Appeal dismissed. Appellant to pay respondent's costs.

Representation:

Counsel:

Appellant: Mr D L Armstrong
Respondent: Ms C Bathurst

Solicitors:

Appellant: Altorfer & Stow
Respondent: State Crown Solicitor

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

Edmond v Taylor (1998) 27 MVR 158
McBride v The Queen (1966) 115 CLR 44
R (A Child) v Gwynne (1999) 28 MVR 441

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Attree v Randell (1993) 19 MVR 95
Davey v Ridge, unreported; SCt of WA (Brinsden J); Library No 4824; 17 March 1983
Devries v Australian National Railways Commission (1993) 177 CLR 472
Jones v Hyde (1989) 63 ALJR 349
Kaighin v The Queen (1990) 1 WAR 390
Karytinos v SA Police (1996) 25 MVR 146
Lederer v Hitchins (1961) WAR 99
Morton v Bevis (1993) 19 MVR 181
Redman v Klun (1979) 20 SASR 343
Restifio v Bernstein (1996) 23 MVR 347
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
Walker v Osborne (1995) 22 MVR 363

HEENAN J: On 20 August 1999 in the Court of Petty Sessions at Geraldton the appellant, a 24-year-old motorcycle technician, was convicted by Mrs A R Robins SM of the offence commonly known as reckless driving. Now he appeals against that conviction on grounds alleging errors in fact and law on the part of the learned Magistrate. On the hearing of the appeal his counsel challenged findings that he was riding his motorcycle at a speed in excess of 112 km/h, that his driving was dangerous, in particular, to his pillion passenger and that he drove with reckless disregard for the safety of the public and others.
Shortly before 6 pm on Wednesday 17 February 1999 the appellant was riding his Honda 600 cc motorcycle north along Chapman Road, Bluff Point. He was on his way home after work and was giving a lift to a 16‑year‑old fellow employee who was on the pillion seat. The evidence shows that when it was a short distance north of Charles Street the motorcycle crossed the broken white line to the eastern half of the roadway and overtook two other north-bound vehicles before returning to the western side. Having travelled through intersections at Green Street and Hallett Place and having gone past an entrance road to a tennis club, the motorcycle went through the roundabout and intersection at Crowtherton Street, about 500 m from Charles Street, and took a left hand bend before crossing a narrow bridge, passing two motor vehicles which were travelling in the opposite direction. Over the next 400 m or thereabouts the motorcycle went by an entrance to a public park and through a built up area, passing two further intersections at Park Avenue and Swan Drive. Then it stopped a short distance past Swan Drive and the pillion passenger alighted. Although the siren of the police car and the blue light on its roof had been activated, neither the appellant nor his passenger saw the light or heard the siren until after the motorcycle had stopped.
The respondent, a police officer, was the driver of a marked police car which had followed the motorcycle from near Charles Street to where it stopped, about a kilometre further on. He and Pc Reid, who was with him, gave evidence to the effect that at times during the journey the appellant had driven at speeds of almost double the speed limit of 60 km/h.
The respondent testified that he estimated the speed of the motorcycle to be 110 km/h as it passed several driveways in the built up area between Charles Street and the roundabout at Crowtherton Street. He estimated its speed to be 80 km/h as it went through the roundabout and 120 km/h as it went past the entrance to the public park, maintaining that speed for a further 400 m or thereabouts until shortly before it stopped. From the roundabout to where the motorcycle stopped the area was built up. The testimony of Pc Reid was in almost exactly the same terms.
In evidence the appellant said that he estimated his speed at 60‑80 km/h but that he did not know what speed he was doing. He travelled that way every day and accepted that the speed limit was 60 km/h. In evidence the pillion passenger said, "I don't think we were quite going 110. Not that fast. I assess speed by the wind rushing past. I felt safe, quite normal, no danger to me".
The evidence shows that the appellant had begun racing motorcycles when he was 10 or 12 years old, that he had raced them at a speedway and around the streets of towns. He often carried pillion passengers. At the time in question he and his passenger each was wearing a full-face helmet, working clothes and boots. The appellant testified that he did not believe that he was driving dangerously, that he had "total control", that there was "no feeling of danger", that he is a very observant and skilled driver who has travelled thousands of kilometres. He was "very switched on" at the time, watching the road and checking the exits and entrances.
There was clear evidence on which the learned Magistrate was entitled to find, as she did, that the motorcycle had been travelling at a speed in excess of 112 km/h in an area where the speed limit was 60 km/h. The appellant's complaint regarding her Worship's finding of speed, therefore, is unfounded.
In considering whether the appellant's manner of driving was dangerous her Worship referred to the circumstances in these terms:
"The evidence is that the roadway in the area through which the defendant drove, is capable of carrying a single lane of traffic in either direction, that houses with driveways border the road on both sides for some of the distance and that housing on the ocean side occupies much of the distance, but there are also recreation grounds, parks and side streets adjoining Chapman Road. Chapman Road at this point is not straight and flat. It winds to the left and dips towards a bridge over the Chapman River, then winds to the right, rises to a crest after leaving the bridge to the north."
Her Worship found, as she was entitled to do, that there was south-bound traffic on Chapman Road at the time, including two cars travelling across the bridge. She took into account also that it was the time of day when people were leaving work and there was traffic on the road. There was no evidence that the appellant's manner of driving caused interference to other road users. Nor was there any evidence of pedestrians in the vicinity at the time. Nevertheless, having referred to several authorities which demonstrated that the test as to whether driving is dangerous is an objective one, and having commented as to the vulnerability of motorcycle riders and their pillion passengers, her Worship went on to say,
"He drove with reckless disregard of the speed limit and thereby compromised his own safety and also the safety of his passenger. Viewed objectively, it is inherently dangerous to drive at almost twice the speed permitted in a built up area. To do so, demonstrates a reckless disregard for the safety of the public and others. In this case, the pillion passenger was a person most immediately at risk."
The charge was brought under s 60(1) of the Road Traffic Act 1974. The offence is described in the heading to the subsection as "Reckless driving" and then is expressed in this way:
"Every person who wilfully drives a motor vehicle in a manner (which expression includes speed) that is inherently dangerous or that is, having regard to all the circumstances of the case, dangerous to the public or to any person commits an offence."
In McBride v The Queen (1966) 115 CLR 44 at 50 Barwick CJ emphasised that "it is the potentiality in fact of danger to the public in the manner of driving, and whether realised by the accused or not, which makes it dangerous to the public". In this case the manner of driving which her Worship found was dangerous to the public - and, in particular, to the pillion passenger - was the speed at which the appellant drove his motorcycle.
As the wording of s 60(1) shows, the speed at which a motor vehicle is driven in itself can constitute a danger to the public. Even on an open road with a high speed limit, the likelihood of a sudden emergency always is present. Kangaroos, cattle or other animals can suddenly appear on the road only a short distance ahead. Branches of trees or the trees themselves might fall on or in front of the vehicle. In a built up area the likelihood of a sudden emergency is much greater. Members of the public generally do not expect speed limits to be ignored. When a motor vehicle exceeds the limit they are likely to take precipitate or even foolish action. A child might suddenly run on to the road. An adult might misjudge the speed of the approaching vehicle and step into its path. A car might suddenly appear from a driveway or a side road.
To drive as fast as the appellant did greatly increases the risk of accident to the occupants of a vehicle - especially if it is a motorcycle - or to other persons who happen to be in the vicinity. Having regard to all the circumstances of the case I find myself unable to conclude that her Worship was wrong in deciding that the driving was dangerous.
Here, of course, the appellant was charged with wilfully driving a motor vehicle in a dangerous manner. The test as to whether dangerous driving is wilful is subjective: Edmond v Taylor (1998) 27 MVR 158. As Miller J observed in R (A Child) v Gwynne (1999) 28 MVR 441 at 445, it must be shown that the driver "adverted to the consequences of or the quality of his driving as being inherently dangerous or dangerous to the public or any person, and … nonetheless recklessly proceeded indifferently to the consequences or the quality of his driving".
In this case it seems to me that, despite his protestations to the contrary, the appellant must have adverted to the quality of his driving as being dangerous to the public or to his passenger. Although young, he was a very experienced motorcyclist. He was riding his own motorcycle and he knew how powerful it was. As her Worship found, he knew that he was travelling in excess of the speed limit, but he did not look at the speedometer during the course of his journey. He was content, it seems, to rely upon his own skill and upon what he described in evidence as the "pristine" condition of his motorcycle - although he must have known that the speed at which he was travelling was far beyond that which the law permitted and at which other members of the public would expect him to travel. In those circumstances, his manner of driving might well be regarded as possessing an element of arrogance in the form of a disregard for the safety of others. I have concluded that her Worship was entitled to find, as she did, that his driving was reckless.
The appeal, therefore, should be dismissed and the appellant ordered to pay the respondent's costs of the appeal to be taxed.