McPherson v Lucas
[2008] WASCA 56
•11 MARCH 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: McPHERSON -v- LUCAS [2008] WASCA 56
CORAM: WHEELER JA
McLURE JA
MILLER JA
HEARD: 7 DECEMBER 2007
DELIVERED : 11 MARCH 2008
FILE NO/S: CACR 34 of 2007
BETWEEN: VALERIE IRIS McPHERSON
Appellant
AND
BENJAMIN MURRAY LUCAS
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :HASLUCK J
Citation :LUCAS -v- McPHERSON [2007] WASC 53
File No :SJA 1108 of 2006
Catchwords:
Criminal law - Appeal against conviction for dangerous driving causing bodily harm - Relationship with negligence - Elements of the offence
Legislation:
Crimes Act 1900 (NSW), s 52A
Criminal Code (WA), s 24
Road Traffic Act 1974 (WA), s 59A, s 61, s 62
Road Traffic Code 2000 (WA), reg 52
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant: Mr R W Richardson
Respondent: Ms C J Thatcher
Solicitors:
Appellant: Stables Scott
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Jiminez v The Queen (1992) 173 CLR 572
Kaighin v The Queen (1990) 1 WAR 390
McBride v The Queen (1966) 115 CLR 44
R v Coventry (1938) 59 CLR 633
Richardson v Price (1971) WAR 177
WHEELER JA: I agree with McLure JA.
McLURE JA: The appellant was charged with one count of dangerous driving causing bodily harm contrary to s 59A(1)(b) of the Road Traffic Act 1974 (WA) (the Act).
The charge arose from a collision between a car driven by the appellant and another vehicle at the intersection of Arbor Drive and Broadway (also known as The Boulevard) in Ellenbrook on 17 January 2006.
The appellant was acquitted of the charge by Magistrate Edwards. The magistrate's decision was overturned on appeal by Hasluck J who substituted an order of conviction. The appellant appealed to this court from the decision of the appeal judge. At the conclusion of the hearing of the appeal the court ordered that the appeal be allowed, the conviction be quashed and the other orders made by the appeal judge be set aside. These are my reasons for joining in those orders.
The statutory framework
Section 59A(1) of the Act 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 ‑
(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 an offence.
(2)For the purposes of this section ‑
[(a)deleted]
(b)it is immaterial that the 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;
(c)the term 'bodily harm' has the same meaning as is given thereto by The Criminal Code.
Section 59A(4) provides that a person charged with an offence against s 59A(1) may, instead of being convicted of that offence, be convicted of an offence of, inter alia, careless driving. Section 62 of the Act relates to careless driving and provides that '[e]very person who drives a motor vehicle without due care and attention commits an offence'.
Section 59 of the Act creates the offence of dangerous driving causing death. Save that the incident must occasion death or grievous bodily harm, s 59(1) is in the same terms as s 59A(1) of the Act. Section 61(1) creates the offence of dangerous driving simpliciter.
Facts
Arbor Drive and Broadway are both dual carriageways with median strips. Before December 2005 the intersection of Arbor Drive and Broadway was a T-junction and vehicles travelling in an easterly direction along Arbor Drive had right of way. By the date of the incident, Broadway had been extended to the south and the give way arrangement altered.
On 17 January 2006, the appellant was driving her vehicle on Arbor Drive in an easterly direction some time between 6.15 pm and 6.30 pm. On the approach to the intersection of Arbor Drive and Broadway there was a warning sign advising motorists that the intersection had been modified. There was also a give way sign on the median strip on Arbor Drive at the intersection and a broken line across Arbor Drive which indicates that motorists entering the intersection from Arbor Drive should give way to traffic on Broadway (give way line). There was no give way sign on the left hand side of Arbor Drive.
The appellant entered the intersection with a view to turning right so as to drive south along Broadway. There was then a collision between the appellant's vehicle and a silver Commodore sedan driven by Tiffany Crawford which was travelling in a southern direction on Broadway. Thus, Ms Crawford's vehicle was approaching the left hand side of the respondent's vehicle. One of the two passengers in Ms Crawford's vehicle suffered bodily harm as a result of the collision.
Ms Crawford gave evidence that she was driving at approximately 60 km per hour at the time of the collision. She said that as she was coming up through the intersection she was looking right but saw nothing and then something hit her vehicle.
The appellant's evidence was to the following effect. Coming in an easterly direction up Arbor Drive she saw on the left hand side a large sign, black lettered with a yellow background, saying there was a modified intersection ahead. She assumed this meant that Broadway had been extended. This caused her to take more care than she would normally take at the intersection. As she approached the intersection she was travelling at about 50 km per hour but she slowed coming into the intersection. It was a dual carriageway and she was keeping to the left. She was going to turn right so she moved slightly to the right hand side in preparation for the turn. She said she did not see any signage regulating the intersection or the give way line on the road. It was a clear day without clouds. The sun was getting low on the horizon and there were low shadows cast across Broadway. She looked to the left and could not see anything coming. She looked to the right and could see a car turning into Arbor Drive and another car a long distance down Broadway, so she knew that she was safe on that side. She looked again to the left and did not see anything coming so she proceeded slowly out into the intersection at an estimated speed of between 30 kph and 40 kph. As she pulled out she looked to the right because that was the first part of Broadway she was going over and there was a car on the right approaching although still a fair distance away. When she got to approximately where the median strip was, and looked to the left, a car was there. She knew that nothing could be done to avoid a collision because she could tell that the driver had not seen her. The collision then happened.
The appellant returned to the scene of the incident on 12 April 2006 and took photographs. She tried to replicate the conditions prevailing on the day of the collision. In the interim, because of the number of accidents at the intersection, a number of remedial steps had been implemented. A give way sign had been installed on the left hand side of Arbor Drive. The colour of the bitumen on which the give way line was marked had been darkened. Even so, the give way line is still not visible on the approach to the intersection in the photograph, exhibit 11. Grey sand on the verge on the left hand side of Broadway travelling south had been replaced or covered with a brown material. The verge slopes down towards Broadway. The photographs show the sun low in the horizon, the glare of the sun hitting and obscuring the give way sign and a strong light and dark contrast between the left hand verge of Broadway which is quite brightly lit and dark shadows on the left hand side of the road on which Ms Crawford had travelled. Very close inspection of one of the photographs (exhibit 13) discloses a car travelling south on Broadway that can just be made out in the shadows on the road. The appellant's evidence was that she was not aware of the presence of the car when she took the photo. There was no suggestion that the appellant had impaired vision not adequately corrected by prescription glasses. Further, there is nothing in the topography of the area around the intersection to put a driver on notice that there may be difficulties in seeing vehicles travelling on Broadway. It was no part of the State case that the appellant's speed was itself inappropriate.
The State case at trial was that the appellant failed to keep a proper look out. Under cross‑examination the appellant denied she failed to pay attention to her driving as she proceeded into and through the intersection. She said:
But I was very attentive in going up to that intersection. I was very careful to look in all directions and I certainly would not have proceeded across that road had there been anything within my sight (ts 48).
The substance of the appellant's evidence was that although she did not see the give way sign or line, the modified intersection sign caused her to do what she would ordinarily do when approaching and entering an intersection at which she was required to give way. The appellant had been driving for 45 years and had an unblemished driving record.
The magistrate's reasons
The magistrate accepted the appellant's evidence. She found that the appellant was travelling at 50 kph before approaching the intersection and slowed to about 30 kph or 40 kph when entering the intersection. She was satisfied that the appellant looked to her left, to her right and then, entering the intersection, to her left again. Immediately before the collision the appellant saw Ms Crawford's vehicle for the first time and was unable to avoid the collision due to the proximity and speed of Ms Crawford's vehicle. The magistrate concluded:
The question to be answered, therefore, remains whether on the facts as I have found them [the appellant] drove dangerously. I have to be satisfied beyond reasonable doubt that her manner of driving was intrinsically dangerous, that is, she seriously breached the proper conduct required of a driver.
[The appellant] approached the intersection with some degree of caution. She slowed down in her approach. She looked to her left, to her right and to her left. Why she did not see the give way sign or the dotted line is a mystery. One could speculate as to why, but the real crux of the matter is that she did not see Ms Crawford, despite looking twice to her left.
What is relevant in this respect is that Ms Crawford did not see [the appellant]. The fact that Mr Bennett and Ms Simpson did see the vehicles, in my view, does not give any weight to the prosecution case that [the appellant] should have seen Ms Crawford's vehicle. Mr Bennett and Ms Simpson were in different positions on the roadway to that of [the appellant].
In my view [the appellant's] conduct and manner of driving was all that would be expected of a prudent, responsible driver. The collision, in my view, cannot be attributed to the manner of driving of the accused. As Mr Scott submitted, the collision appears to have simply been an accident (ts 5).
The respondent appealed from the magistrate's decision. There was no challenge to any of the primary factual findings made by the magistrate. The respondent's sole contention was that a finding that the appellant had driven in a manner that was dangerous to the public was the only conclusion available on the uncontested evidence that (a) the appellant was required to give way; (b) the appellant drove into the intersection without giving way; and (c) the appellant's vehicle collided with a vehicle which had right of way.
The first appeal
The appeal succeeded because the appeal judge rejected the findings of the magistrate. He said the compelling inference from the incontrovertible facts was that Ms Crawford's vehicle could be seen by the driver of a vehicle entering the intersection from Arbor Drive and would have been seen by a driver exercising reasonable care which in turn mandated the inference that the appellant had failed to observe or pay sufficient attention to Ms Crawford's car as it approached the intersection. The appeal judge continued:
It follows from decided cases such as Fox v Percy (supra) that in the case of a compelling inference (in the nature of an incontrovertible fact) that Ms Crawford's vehicle was approaching the intersection when [the appellant] entered, a finding based simply upon the [appellant's] credibility cannot be regarded as sufficient to displace or override the opposing evidence (based upon the inference) that the [appellant] had failed to keep a proper look out and exercise appropriate caution before entering the intersection …
Accordingly, I am of the view that the learned Magistrate erred in her assessment of the evidence before her in the manner contended for in the grounds of appeal. Put shortly, the [appellant] was required to give way but failed to do so. She collided with a vehicle which had the right of way and was close by as the [appellant] entered the intersection. In the absence of any finding or credible evidence that a person in the [appellant's] position could not be expected to see the oncoming vehicle, the Magistrate was entitled to find, and should have found, that the [appellant] was not sufficiently attentive to the various facts and matters bearing upon the possibility that a collision might occur and drove in a manner that was dangerous to the public [78] ‑ [79].
In the appeal to this court, the appellant relied on two grounds of appeal being that the learned appeal judge erred in law:
(1)in finding that the only rational inference open on the evidence was that the appellant was not sufficiently attentive to the possibility that a collision might occur, it being open to the magistrate to conclude that the prosecution had failed to prove beyond reasonable doubt the possible inference that the appellant had been driving attentively but had reasonably failed to see the vehicle;
(2)in reversing the onus of proof.
Legal principles
The State's contention as to the scope of the offence of dangerous driving is reflected in its ground of appeal from the decision of the magistrate. Its contention was to the effect that a driver who contravened the give way road rule resulting in a collision with a vehicle who had right of way must be driving in a manner that is dangerous to the public. The relevant road rule is reg 52 of the Road Traffic Code 2000 (WA) which relevantly provides that '[a] driver at an intersection with a "give way" sign or give way line shall give way to a vehicle in, entering or approaching the intersection … '.
The State's contention reflects a fundamental misunderstanding of the law. It is necessary to revisit what the High Court has said on the topic. Although intention is not an element of the offence, liability under s 59A of the Act is not absolute. It does not extend to involuntary acts or if the defence of (inter alia) mistake under s 24 of the Criminal Code applies: Jiminez v The Queen (1992) 173 CLR 572; Kaighin v The Queen (1990) 1 WAR 390, 395.
There are many authorities, including some in this jurisdiction, that suggest 'fault' is an independent element of the offence. That proposition was rejected by the High Court in Jiminez. The court provided a more nuanced explanation of the relevance of the notion of fault. It said (583):
Driving in a manner dangerous to the public is at once both the offence and, if it is relevant, the fault, but it will be a defence to establish an honest and reasonable mistake as to facts which if true would exculpate the driver.
The word 'establish' in that proposition is apt to mislead. The burden on the defendant is evidentiary only and the prosecution retains the burden of negativing the defence of mistake by proving beyond reasonable doubt that the defendant did not honestly believe on reasonable grounds in the existence of facts which, in the circumstances would take her act outside the operation of the statute: Jiminez (582).
An offence under s 59A is not established by demonstrating that the incident resulting in bodily harm was caused by the driver failing to drive with due care and attention: Jiminez. The High Court in that case was considering s 52A of the Crimes Act 1900 (NSW) which is in materially the same terms as s 59A of the Act. The High Court said:
The manner of driving encompasses 'all matters connected with the management and control of a car by a driver when it is being driven'. For the driving to be dangerous for the purposes of s 52A 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 [579].
The application of the principles to the facts is best seen in the judgment of Barwick CJ in McBride v The Queen (1966) 115 CLR 44 which was approved in Jiminez. The applicant in McBride was convicted of an offence under the equivalent New South Wales statute arising out of the collision of a lorry driven by him with a woman and child on a pedestrian crossing. The applicant had been driving on the correct side of the road at a relatively slow speed behind a motor car. The motor car stopped well short of the crossing. The applicant swerved out from behind the motor car and struck a woman and child on the crossing. The applicant claimed he had not seen the persons on the crossing until they were 6 ft to 8 ft from the point of impact because his attention had been appropriately directed to an oncoming car. The High Court held the summing up to be defective and quashed the conviction. The Chief Justice identified a need to precisely identify the manner of driving which the State alleges against a defendant and which it claims is dangerous to the public. He said (49 ‑ 50) that the section:
[I]mports a quality in the … manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.
He contrasted the offence with that of negligence. He said (50):
The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby.
Thus, to establish a breach of s 59A(1) it is not enough that a vehicle as driven by the driver has caused injury and the driver was negligent, even in some glaring respect (Barwick CJ (51). The Chief Justice identified that the only basis on the evidence for concluding that the lorry at the time of the incident was being driven in a manner dangerous to the public was that it was being driven 'so inattentively' when approaching a pedestrian crossing that such inattentive driving constituted a danger to the public.
It is clear from the judgments in McBride and Jiminez that there is a difference in degree in the risk of harm sufficient to result in a finding of breach of duty in negligence and that required to establish dangerous driving. That is consistent with our statutory scheme. The Act differentiates between dangerous driving (s 59(1)(b), s 59A(1)(b), s 61(1)) and careless driving (s 62). If it were otherwise, all breaches of a tortious duty would, because of the inevitable risk of harm to the public associated with driving a motor vehicle, constitute dangerous driving.
The trial judge in McBride had directed the jury to ask themselves why the applicant did not see the people on the cross walk sooner. Barwick CJ said (52):
The question, in my opinion, was not why didn't he see the pedestrian earlier than the time he claimed to have done. It may be impossible for the jury to answer that question and yet not be entitled to conclude affirmatively and beyond all reasonable doubt that the driver was driving inattentively to the danger of the public at a time so proximate to the impact that it could be concluded that at the time of the impact he was driving in a manner dangerous to the public.
The trial judge had also noted that it was an offence to drive a vehicle on a pedestrian crossing when there was a person crossing it. Barwick CJ said the traffic offence was an irrelevant consideration, there being no claim that he deliberately drove through the pedestrian crossing. He concluded that the trial judge had erroneously approached the matter as if the case was one of breach of duty towards the particular people on the pedestrian crossing.
The State's position is that the objective physical movement of the car is a fact in issue in an offence under s 59A. That is wrong. The relevant fact in issue is the actual driving behaviour of the driver: R v Coventry (1938) 59 CLR 633; McBride. The objective physical movement of the car is only a fact from which an inference about the actual driving behaviour of the driver can often but not always be drawn. It will most often be drawn when the driving is intrinsically dangerous regardless of the circumstances. It will be drawn less often when the quality of the driving depends on the surrounding circumstances as in McBride and this case. An allied contention of the State was that whether or not the appellant looked to her left to determine if there were oncoming cars on Broadway is irrelevant because the test of dangerous driving is objective. The correct position is that it is necessary to first make factual findings as to the actual driving behaviour of the driver. Whether or not the driver looked for oncoming traffic is part of the manner of driving and is relevant. The objective question is whether the manner of driving so found on the facts has the necessary quality of being dangerous to the public. In making this objective assessment, regard is had to what the driver knew or ought reasonably to have known.
The point is best illustrated in Richardson v Price (1971) WAR 177. In that case the appellant was driving a car towing a trailer. Driving in a northerly direction, he turned right into another road. Before he completed the turn, a car on his right collided with him. By reason of the topography of the road, the appellant was not and could not have been aware of the approach of the other car until he was well into his turn, by which time it was physically impossible for him to give way to it. If regard is had solely to the movement of the car, it did not give way to the vehicle approaching the intersection. If regard is had to the actual driving behaviour of the driver he did what was reasonable in the circumstances. The court had regard to the latter and upheld an appeal against a conviction for dangerous driving.
Finally, the road rules do not provide the standard of what is or is not driving in a manner dangerous to the public. Road rules are of necessity a one‑size fits all concept. They are relevant insofar as they provide a framework for what road users may legitimately assume or expect, but they are not determinative.
Analysis
The issue in this case is the same as that identified by Barwick CJ in McBride namely whether the appellant drove so inattentively when approaching and entering the intersection that such inattentive driving constituted a danger to the public. If the appellant's evidence as to her manner of driving is accepted, as it was by the magistrate, it is not open to be satisfied beyond reasonable doubt that the appellant drove in a manner dangerous to the public. Moreover, because the State bears the onus of proving guilt beyond reasonable doubt, it would be necessary for the fact finder to positively reject the appellant's evidence in order to convict.
I was satisfied that the appeal judge erred in concluding that the only reasonable inference available from the incontrovertible facts was that a person exercising reasonable care would and should have seen Ms Crawford's vehicle. The evidence relating to the configuration and conditions of the intersection at the time of the accident (including the position of the sun, the colour of the Broadway verge which provided the background for Ms Crawford's silver vehicle, and the low shadows on Broadway) Ms Crawford's evidence that although she looked she did not see the appellant's vehicle and the number of accidents resulting in significant modifications to the intersection, provide a sufficient evidential foundation on which to accept or, at least, not reject the appellant's evidence as to her manner of driving on that day. As stated by Barwick CJ in McBride, it may be impossible to answer the question why the appellant did not see Ms Crawford's car and still have a reasonable doubt as to whether the appellant was driving so inattentively as to be a danger to the public. The magistrate did not err in failing to make a finding as to why the appellant did not see the other vehicle.
Moreover, even if the inferences drawn by the trial judge were the only reasonable inferences open, his findings are incapable of supporting the conclusion that the appellant breached s 59A(1)(b) of the Act. The appeal judge erroneously approached the matter as if the case was one of negligent breach of duty towards the occupants of Ms Crawford's vehicle. The appeal judge's findings would at best support an inference of careless driving.
MILLER JA: I agree with McLure JA.
87
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