Moore v Moore
[2001] WASCA 126
•9 APRIL 2001
MOORE -v- MOORE [2001] WASCA 126
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 126 | |
| Case No: | SJA:1020/2001 | 9 APRIL 2001 | |
| Coram: | McKECHNIE J | 9/04/01 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | JARROD RUEBEN JOHN MOORE STEPHEN MOORE |
Catchwords: | Dangerous driving causing bodily harm What constitutes driving in a manner dangerous to the public Honest belief that road clear Whether a defence |
Legislation: | Road Traffic Act 1974 (WA), s 59 |
Case References: | A M Smith v The Queen [1976] WAR 97 Jiminez v The Queen (1992) 173 CLR 572 Kaighin v The Queen (1990) 1 WAR 390 McBride v The Queen (1966) 115 CLR 44 Becker v Roberts, unreported; SCt of WA (Murray J); Library No 970686; 12 December 1997 Hancock v Cox (1993) 19 MVR 137 Kitson v The Queen (1987) 5 MVR 228 McLuckie v Williams, unreported; SCt of WA (Murray J); Library No 950420; 11 August 1995 O'Brien v Ostrowski [1999] WASCA 184 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : MOORE -v- MOORE [2001] WASCA 126 CORAM : McKECHNIE J HEARD : 9 APRIL 2001 DELIVERED : 9 APRIL 2001 FILE NO/S : SJA 1020 of 2001 BETWEEN : JARROD RUEBEN JOHN MOORE
- Appellant
AND
STEPHEN MOORE
Respondent
Catchwords:
Dangerous driving causing bodily harm - What constitutes driving in a manner dangerous to the public - Honest belief that road clear - Whether a defence
Legislation:
Road Traffic Act 1974 (WA), s 59
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr A C Thorpe
Respondent : Mr S J Wright
Solicitors:
Appellant : A C Thorpe
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
A M Smith v The Queen [1976] WAR 97
Jiminez v The Queen (1992) 173 CLR 572
Kaighin v The Queen (1990) 1 WAR 390
McBride v The Queen (1966) 115 CLR 44
Case(s) also cited:
Becker v Roberts, unreported; SCt of WA (Murray J); Library No 970686; 12 December 1997
Hancock v Cox (1993) 19 MVR 137
Kitson v The Queen (1987) 5 MVR 228
McLuckie v Williams, unreported; SCt of WA (Murray J); Library No 950420; 11 August 1995
O'Brien v Ostrowski [1999] WASCA 184
(Page 3)
- McKECHNIE J:
Introduction
1 This is an appeal from the Court of Petty Sessions against the conviction of the appellant on two charges of dangerous driving causing bodily harm.
Factual circumstances giving rise to the charges
2 The factual circumstances giving rise to these charges are not in issue.
3 The charges relate to a traffic accident at the intersection of Abercrombie Road and Anketell Road, Hope Valley, at about noon on Saturday 5 February 2000.
4 Ms Kelso was driving her friend Ms Bell in a Ford Festiva east on Anketell Road, Hope Valley at about 80 to 90 kilometres per hour. At the same time, the appellant was driving a Toyota Landcruiser utility south in Abercrombie Road, Hope Valley. Abercrombie Road terminates at Anketell Road. The intersection is controlled by two stop signs in Abercrombie Road, one facing the appellant's direction. He saw them both.
5 The day was sunny and the road was clear and visibility at the intersection was unrestricted.
6 The appellant was subsequently interviewed on video. In his words:
"I pulled up at a stop sign. Looked left, looked right. Thought the road was clear. Took off out of the stop sign that was there, and as I turned and looked up the other car was coming to me from the driver's side with tyres smoking and skidding and hit me."
7 He also said:
"I seen nothing until the last minute. I turned around and looked to the right a second time. That's when I seen the silver vehicle coming down the hill on the other side of the road. I looked back to my right again and as I took off that's when I seen the smoke."
(Page 4)
8 In answer to a further question as to how far out he was before he saw or heard the other car, he said:
"I would have only been just slightly out of the stop sign."
- Although the driver's door window was tinted, he could see out of it.
Proceedings in the Court of Petty Sessions
9 The appellant was charged with two charges in identical terms, one charge relating to Ms Kelso and the other relating to Ms Bell. The charge in each case was:
"Caused bodily harm to [the person] by driving a vehicle, registered number 8EP 982 on a road, namely Anketell Road in a manner that was, having regard to all the circumstances, dangerous to the public or to any person."
10 The appellant pleaded not guilty. It was conceded on his behalf that Ms Kelso and Ms Bell had both sustained bodily harm.
11 The prosecution witnesses were called and read their statements.
12 There was an independent eyewitness who was following the appellant's vehicle, one car back from it. He gave evidence as follows:
"He got to the stop sign, stopped, and then proceeded to move over the stop sign and as soon as he cleared the stop sign, the red car collided."
13 He estimated the appellant had stopped for about 10 seconds and then pulled out and the collision occurred almost immediately thereafter. He described the passage of Ms Kelso's vehicle in the following terms:
"It was travelling down east on Anketell Road and I watched it come down and there was no way she was speeding so - - well, I can't definitely say she wasn't speeding but she wasn't going, like, 120 Ks an hour and there was, like, 600 metres worth of road to view up. There was no reason why you wouldn't be able to see the car. There was, like - -"
14 The witness first observed the red vehicle 250 metres from the site of the accident.
(Page 5)
15 The driver of another vehicle, between that witness and the appellant's vehicle, did not see Ms Kelso's vehicle prior to the collision.
16 A police officer was briefly cross-examined to confirm that the appellant was not driving with an excess blood alcohol concentration.
17 After submissions from both sides the learned Magistrate gave his reasons which can be summarised in the following passage:
"It seems to me that there is no doubt the defendant entered the intersection when it was not safe to do so and I would have thought that in itself would constitute dangerous driving. He had an obligation to give way to the vehicle driven by Ms Kelso. It has been submitted that he didn't see the other vehicle and there was no explanation given for that. The evidence before me is that the area around the intersection was clear. …"
The act of moving a vehicle into the pathway of another which had right of way, to my mind, constitutes or creates a dangerous situation and as I have said, it was dangerous to drive his vehicle in the manner he did on this day. I think it's open to me to find at the required standard that the manner of driving of the defendant on this day was dangerous. I find both charges proven."
Grounds of appeal
18 On 20 February 2001 I granted leave to appeal. Those grounds have been amended and are as follows:
"1.1 The learned Magistrate erred in fact and in law in finding that the driving of the Applicant was dangerous by his entry of the intersection in the path of an oncoming vehicle. This finding was despite evidence that though the Applicant okked both right and left he did not see the oncoming vehicle;
1.2 The learned Magistrate erred in law in failing to consider whether the prosecution had negatived the defence of honest and reasonable but mistaken belief that it was safe to enter the intersection when that defence was raised on the evidence."
(Page 6)
The principles in relation to dangerous driving
19 Any elucidation of the principles of dangerous driving in Western Australia must commence with A M Smith v The Queen [1976] WAR 97 which was the first time the Court of Criminal Appeal had occasion to consider the then new concept of dangerous driving causing death in the Road Traffic Act s 59.
20 In Smith, Jackson CJ who delivered the reasons of the Court, followed McBride v The Queen (1966) 115 CLR 44.
21 In McBride v The Queen, Barwick CJ said at 49-50:
"This imports a quality in the speed or manner of driving which either intrinsically in all the 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. … Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section."
22 Jackson CJ then continued at 104:
"The decisions in England on the comparable and very similar statutory provisions of that country show that the courts there have held over many years that criminal negligence is not an element of the offence of dangerous driving, but that the test is an objective one, so that juries are invited to place themselves, in their mind's eye, at the scene of the accident and to say whether the manner of driving was a dangerous piece of driving."
23 In Kaighin v The Queen (1990) 1 WAR 390 the Court of Criminal Appeal had occasion to review the authorities in relation to the offence created under the Road Traffic Act s 59. After reviewing the authorities the court continued at 395:
(Page 7)
- "It seems to us that the following proposition can be derived from the above authorities and a construction of s 59(1) of the Road Traffic Act:
(a) An offence is committed under s 59(1) when a person drives a motor vehicle in a manner dangerous to the public and thereby causes death or grievous bodily harm (ie there is a causal link between the dangerous driving and the death or grievous bodily harm).
(b) Negligence is not an element of dangerous driving; negligent driving is not necessarily dangerous driving; thus failure to keep a proper look out on a road on which there is no other traffic and there are no persons in the vicinity is not dangerous driving.
(c) For driving to be 'dangerous' within the meaning of s 59(1) it must in reality, and not speculatively, be actually or potentially dangerous to the public or another person.
(d) A momentary lapse of attention may constitute dangerous driving.
(e) The test as to whether driving is dangerous is objective.
(f) Section 59(1) does not exclude a defence based on absence of fault, including a defence based on s 25 of the Criminal Code, or a defence based on the conduct of another person."
- Kaighin was decided prior to the important case of Jiminez v The Queen (1992) 173 CLR 572.
24 It does appear that a defence of honest and reasonable but mistaken belief if in the existence of a state of things, Criminal Code s 24, is relevant to a prosecution in respect of dangerous driving. In Jiminez v The Queen (supra) the High Court considered the application of a mistake of fact in circumstances where a driver had apparently fallen asleep at the wheel.
25 Although the High Court was dealing with the position at common law, and the concept of mens rea, in my opinion the judgment of the court is also applicable to cases under the Criminal Code s 24.
(Page 8)
Application of principles to the case
26 With those general principles in mind, I turn to the circumstances of this case.
27 Viewed objectively, there is no doubt that the manner of driving of the appellant on Anketell Road was dangerous.
28 On a clear day, at an open intersection, he drove his car directly into the path of an oncoming vehicle, causing a situation not of potential but of actual danger. The fact that he looked and did not apparently see the other vehicle does not lessen the conclusion that the manner of driving in entering Anketell Road at that time was objectively dangerous.
29 In consequence I do not uphold the first ground of appeal.
30 I turn to the second ground of appeal.
31 The appellant did not give evidence at the trial. However, the learned Magistrate did have available to him the videotaped record of interview, the relevant portion of which I have set out above. This formed part of the evidence for the Magistrate's consideration.
32 Although the ground of appeal asserts that the defence was raised on the evidence, the closing submissions of counsel did not expressly or impliedly raise s 24 as an issue. It is wrong to assert that the Magistrate erred when his attention was never directed to the issue. It may be that because the matter was not considered there has been a miscarriage of justice. That is a different point. Nevertheless, I will deal with the ground.
33 There must be an evidential basis for the application of s 24 before the prosecution is required to negative those facts beyond reasonable doubt. In this case there is no evidential basis of a reasonable belief.
34 Granted that the appellant looked and stopped. Granted also that he did not see the other vehicle. He is hardly likely to have driven deliberately into the path of an oncoming vehicle. Nevertheless the vehicle was there. With the open aspect of the intersection, it was unreasonable for the appellant to have missed seeing the vehicle.
35 There is no evidence of mechanical failure, lack of consciousness or the like. The only evidence is that the appellant looked but did not see a vehicle which was plainly there. That evidence does not give rise to an
(Page 9)
- honest and reasonable, but mistaken, belief in the existence of a state of things, namely a clear road.
36 In consequence I do not uphold the second ground of appeal.
37 The appeal is therefore dismissed.
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