Munro v Wovodich
[2013] WASC 215
•31 MAY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MUNRO -v- WOVODICH [2013] WASC 215
CORAM: BEECH J
HEARD: 24 MAY 2013
DELIVERED : 31 MAY 2013
FILE NO/S: SJA 1130 of 2012
BETWEEN: JAKE VERNON MUNRO
Appellant
AND
JASMINE LOUISE WOVODICH
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE B C GLUESTEIN
File No :JB 160 of 2011, JO 9198 of 2012, JO 9213 of 2012
Catchwords:
Criminal law - Dangerous driving causing bodily harm - Appeal against conviction - Whether magistrate drew inference against the appellant when alternative inference consistent with innocence was reasonably open - Whether magistrate overlooked unchallenged evidence supporting a conclusion of innocence - Whether magistrate erred in making findings of fact - Turns on own facts
Legislation:
Road Traffic Act 1974 (WA), s 59A
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr P G Laskaris
Respondent: Ms K A T Pedersen
Solicitors:
Appellant: W.G. McNally Jones Staff Lawyers
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
Kaighin v The Queen (1990) 1 WAR 390
McPherson v Lucas [2008] WASCA 56
BEECH J: The appellant was convicted of three counts of dangerous driving causing bodily harm, arising from one collision in which three people were injured. The appellant appeals against his convictions. There are three grounds. In broad summary, the first ground alleges that the magistrate erred in drawing an inference of guilt in circumstances where there was an alternative inference, consistent with innocence, that was reasonably open on the evidence. Secondly, the appellant claims that the magistrate overlooked uncontradicted evidence supporting a conclusion of innocence. Thirdly, the appellant claims that the magistrate made errors in his findings of fact.
For the reasons that follow, I would dismiss the appeal.
I will begin with an outline of uncontroversial background facts, the charges and prosecution opening, and the magistrate's reasons, before dealing with the grounds of appeal in turn.
The factual context
On 25 April 2011, the complainant, Mr Daniel Miguel was driving his silver Nissan Pathfinder north on Indian Ocean Drive. His partner, Ms Celine Murray, and their young son were in the car.
Indian Ocean Drive runs north‑south. Jurien Road East commences on Indian Ocean Drive and runs at a right angle to it, to the east.
Indian Ocean Drive is, in this area, a single lane in each direction. For about 140 m on either side of where Jurien Road East meets Indian Ocean Drive, Indian Ocean Drive has been widened. In that area the northbound lane is 6.63 metres wide. Immediately before and after that area it is 3.77 metres wide. The widening is evidently to permit a car to pass safely to the left of a vehicle which has stopped or slowed in order to turn right from Indian Ocean Drive into Jurien Road East.
The appellant was driving a red Holden utility vehicle north on Indian Ocean Drive, behind Mr Miguel's vehicle.
The accident giving rise to these charges occurred as Mr Miguel was in the process of turning right from Indian Ocean Drive into Jurien Road East.
Skid marks of the appellant's vehicle were visible after the accident. The location and length of those skid marks was accurately recorded in a diagram created by Constable Wovodich (exhibit 2A, 2B). A number of photographs were also tendered (exhibit 3A‑3N).
At the trial, it was conceded that the appellant was driving the red utility on Indian Ocean Drive, and that as a result of the accident the three complainants suffered bodily harm. The issue at trial was whether the appellant had driven in a manner that was having regard to all the circumstances dangerous to the public or to any person (and, by implication, that manner of driving caused the accident).
The charges and the prosecution opening
The appellant was charged with three offences, reflecting the fact that three people were injured in the accident. The appellant was charged that on 25 April 2011 at Jurien Bay he drove a motor vehicle on a road, namely Indian Ocean Drive, in a manner that was, having regard to all the circumstances, dangerous to the public or any person and was involved in an incident occasioning bodily harm to each of the respective complainants.
The prosecutor opened the prosecution case as follows:
He's approached the intersection of Indian Ocean Drive and Jurien East Road. There's been a Nissan Pathfinder at the intersection also heading north and that vehicle had the intention - or the driver had the intention of turning right into Jurien East Road. The occupants of that vehicle, the driver, Daniel Miguel and passenger Celine Murray, were in that vehicle as well as a child, who was uninjured.
Indian Ocean Drive at that stage is a long and straight road and as the defendant has approached, he's failed to 'negate' the vehicle that was clearly in the road at that time and has crashed into the vehicle and the evidence will show and the photographs will show that the Nissan Pathfinder was turning right and the red Holden Commodore has skidded or the skid marks on the road will show that he's then gone to the right‑hand side of the road and collided with the front right‑hand side of the vehicle, the Nissan Pathfinder. As a result of that accident, the bodily harm has occurred to Ms Halliday, Miguel and Murray.
The prosecution case is that in all the circumstances, given the nature of the road and that he should have seen the vehicle (ts 17/09/2012 page 5).
The magistrate's reasons for decision
At the trial, the prosecution called Mr Miguel, Ms Murray, the driver of a different vehicle, Mr Tavinor, and two police officers, Constable Wovodich and Sergeant Walker.
The appellant elected not to give evidence, and called an expert traffic engineer, Mr Robert Davey.
Having heard closing submissions on 18 September 2012, the learned magistrate delivered oral reasons on 5 October 2012 for his decision to convict the appellant. The following is an outline of what the magistrate said (generally adopting his Honour's language):
(a)On 25 April 2011, the complainant Mr Daniel Miguel, and his partner, Ms Celine Murray, were driving north on Indian Ocean Drive. Mr Miguel was driving. In the course of attempting to turn right from Indian Ocean Drive into Jurien Road East, his car was struck on the right by a red Holden utility driven by the appellant.
(b)Three people were injured as a result of the accident. Their injuries constituted bodily harm.
(c)It was conceded that Mr Munro was driving, that his car was involved in the collision, and that the collision caused bodily harm to the three injured persons.
(d)The only issue at trial was whether the appellant had driven in a manner that was, having regard to all the circumstances, dangerous to the public or to any person.
(e)Mr Miguel's evidence was that he and his partner, and their baby, were heading home to Beacon, a town in the Wheatbelt. They had spent the weekend at the town of Jurien. He was driving. He slowed as he approached the intersection with Jurien Road in order to turn right. In evidence‑in‑chief he said that he stopped, but in cross‑examination he said that he was not sure if he stopped. As he was making the turn, his car was hit by Mr Munro's vehicle on the right‑hand side. Mr Miguel had little recollection of the accused's vehicle, apart from hearing heavy screeching of tyres and seeing a red object to his right. Mr Miguel could not recall whether he had put his indicator on.
(f)The evidence of Ms Murray added very little.
(g)Mr Tavinor was driving another vehicle in a westerly direction along Jurien Road East, heading towards the intersection with Indian Ocean Drive. Mr Tavinor said that he had good visibility from which the magistrate was satisfied that the weather was fine and the road was dry with the sun not interfering with the vision of anyone. Mr Tavinor's evidence was in conflict with that of the expert Mr Davey as to the position of Mr Miguel's vehicle at the point of impact. Mr Tavinor described the vehicle as having completed the right‑hand turn at the time of impact. However, the magistrate rejected that part of Mr Tavinor's evidence, saying that he accepted Mr Davey's uncontradicted evidence which was based on the forensic evidence of the tyre marks and photographs.
(h)The significant element of Mr Tavinor's evidence was his observation that Mr Miguel's vehicle was not speeding and was doing something like 80 or 90 km per hour.
(i)Constable Wovodich gave evidence describing the road layout, signage and speed zones. That included that there was, 150 metres south of the intersection, a sign visible to cars travelling from the south identifying the approaching junction. At the junction, there is a widening of the road, allowing room for a car to travel on the left‑hand side of a car that was turning right into Jurien Road.
(j)Sergeant Walker spoke to the appellant. The appellant told him that he saw Mr Miguel's vehicle stopped in front of him and then started to turn right, he attempted to overtake it on the right going at about 100 km per hour in what was a 110 km zone. Mr Munro said to Sergeant Walker that he was unsure if Mr Miguel had his indicator working.
(k)Mr Davey gave expert evidence extrapolated from the photographs and tyre marks. He concluded that Mr Miguel's vehicle was not parallel to the centre lines of the highway before impact, and was at an angle to the centre line, meaning that it was turning into the right‑hand manoeuvre from a point other than immediately adjacent to and parallel to the centre line. Mr Davey accepted that he could not otherwise determine where in the northbound lane Mr Miguel's vehicle had come from (ts 5/10/12, page 5).
(l)From that, the defence invited the possibility that Mr Miguel entered into the right turn at the last minute perhaps without any indication, and possibly from a position on the road well to the left of the north bound lane (ts 5/10/12 page 5).
(m)The magistrate said there were five difficulties with that submission:
(i)the weather and road conditions allowed clear visibility as Mr Munro approached the intersection;
(ii)at that point the road is wider;
(iii)that part of the road is a straight section. Mr Miguel's evidence was that he was on the right side of the northbound lane before he commenced his turn and had slowed down to a very low speed prior to turning;
(iv)the limited evidence that exists suggested that Mr Miguel's driving was unexceptional at the time, and that he was travelling quite slowly immediately before impact;
(v)there is nothing to suggest Mr Miguel's driving in any way was careless or dangerous (ts 5/10/12 page 5).
(n)The only reasonable inference from the findings on the facts is that Mr Munro's failure to see the vehicle ahead, that of the slowly turning Mr Miguel was, having regard to all the circumstances, dangerous driving. That dangerous aspect was made more so by his attempting to overtake Mr Miguel on the right‑hand side and entering therefore partly into the opposite or southbound lane (ts 5/10/12 page 5).
(o)While his Honour accepted on Mr Davey's evidence that Mr Miguel's vehicle was not, immediately prior to the start of its right turn, immediately adjacent to and parallel to the left of the centre line of the highway, his Honour could conclude that it was travelling slowly. Mr Miguel's evidence was that he was manoeuvring to the centre of the road to effect his right turn. His Honour concluded that the vehicle would have easily been seen by a person in Mr Munro's position from well back to the south (ts 5/10/12 page 6).
(p)His Honour rejected the defence proposition that there was an onus on the prosecution to prove that Mr Miguel had not activated his indicator.
(q)There was no support in the evidence for the proposition that Mr Miguel might have decided to turn at the last minute, referring to Mr Miguel's evidence that he was slowing and moving towards the centre (ts 5/10/12 page 6).
Reading the learned magistrate's reasons as a whole, the following observations can be made about his reasons for decision.
First, the learned magistrate evidently accepted the evidence of Mr Miguel to which he referred in the passages outlined in paragraphs (m)(iii), (o) and (q) above.
Secondly, as was accepted by counsel for the appellant on the appeal, the magistrate was not saying that at no point prior to the collision did the appellant ever see the Nissan vehicle. When the magistrate referred to the appellant's failure to see Mr Miguel's vehicle, his Honour was referring to the failure of the appellant to see that vehicle as early as he could and should have, such that his driving was sufficiently inattentive to have constituted a danger to the public.
Thirdly, the magistrate found that Mr Miguel did not turn right from a position immediately adjacent to and parallel to the centre line. That finding was based on the magistrate's acceptance of Mr Davey's evidence.
Grounds of appeal
The grounds of appeal are in the following terms:
1.The circumstantial evidence led at trial for the purposes of the prosecution proving beyond reasonable doubt the allegation of dangerous driving upon which the Magistrate relied, being that the 'only reasonable inference available...on the facts of this incident is that [the Appellant's] failure to see the vehicle ahead...was, having regard to all the circumstances facing [the Appellant], dangerous driving [T:05/10/12 p5/9], was open to inferences able to be drawn inconsistent with the Appellant's guilt being:
(a)That the driver of the other vehicle involved in the accident, Daniel Joseph Miguel ('Miguel'), at the T‑intersection where the dual carriageway Jurien Road East terminates and meets the dual carriageway Indian Ocean Drive ('T‑intersection'), attempted to make a right hand turn into the east abound carriageway of Indian Ocean Drive whilst not in the correct position in the north bound carriageway of Indian Ocean Drive and contrary to reg.24 of the Road Traffic Code 2000 ('RTC');
(b)That the driver of the other vehicle involved in the accident, Miguel, stopped his vehicle in the north bound carriageway of Indian Ocean Drive within the T‑intersection, and contrary to reg.143(1) RTC;
(c)That the driver of the other vehicle involved in the accident, Miguel, stopped his vehicle in the north bound carriageway of Indian Ocean Drive so that a portion of Miguel's vehicle was within 10 metres of the prolongation of the nearer edge of the intersecting dual carriageway of Jurien East Road of the T‑intersection and not along the continuous side of the continuing road at the T‑intersection, being the north bound carriageway of Indian Ocean Drive, and contrary to reg.143(3)(b) RTC; and
(d)That the driver of the other vehicle involved in the accident, Miguel, attempted to turn right from the north bound carriageway of Indian Ocean Drive into the east bound carriageway of Jurien East Road at the T‑intersection without giving warning of his intention by a signal [T:05/10/12 p6/4] and contrary to reg.35, 36(1) & 37(1)(a) RTC.
2.The Learned Magistrate found that '[t]he defence is limited to the evidence of the expert Davey' [T:05/10/12 p4/10] and failed to take into account the evidence given by the prosecution witnesses which of itself and in conjunction with the expert Davey's evidence (that the Learned Magistrate found to be that 'Miguel's vehicle was not, immediately prior to the start of its right turn, immediately adjacent to and parallel to the left of the centre line of the [north bound carriageway of Indian Ocean Drive]' [T:05/10/12 p6/2] gave rise to inferences to be drawn from the whole of the circumstantial evidence led at trial inconsistent with the Appellant's guilt.
3.The Learned Magistrate took into account irrelevant considerations including:
(a)That 'the weather and road conditions...allowed clear visibility [T:05/10/12 p5/5] to the Appellant;
(b)That the north bound carriageway of Indian Ocean Drive in the vicinity of the T‑intersection 'is wider at this intersection, and for quite a number of metres on the approach to this intersection' [T:05/10/12 p5/6];
(c)That the north bound carriageway of Indian Ocean Drive in the vicinity of the T‑intersection 'is a straight section of road' [T:05/10/12 p5/6/];
in concluding that Miguel's driving was :
(i)'[U]nexceptional at the time [T:05/10/12] p5/7] and
(ii)That there was 'nothing to suggest that Miguel's driving in any way was careless or dangerous' [T:05/10/12 p5/8].
Leave to appeal was granted on 27 December 2012.
Dangerous driving - legal principles
Section 59A(1) of the Road Traffic Act provides that:
59A.Dangerous driving causing bodily harm
(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.
An offence under s 59A(1)(b) is not established by demonstrating that an incident resulting in bodily harm was caused by a driver failing to drive with due care and attention: Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572. The High Court in that case was considering s 52A of the Crimes Act 1900 (NSW) which is in similar terms to s 59A of the Road Traffic Act. The High Court in Jiminez 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 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).
See also McPherson v Lucas [2008] WASCA 56 [20] ‑ [30].
In Kaighin v The Queen (1990) 1 WAR 390 the Full Court held that for driving to be dangerous it must in reality be actually or potentially dangerous to the public or another person. A momentary lapse of attention may constitute dangerous driving. The test as to whether the driving is dangerous is objective.
Ground 1 - was an alternative inference reasonably open?
As formulated in the notice of appeal, ground 1 appears to propose four inferences said to be inconsistent with the appellant's guilt. However, understandably, that is not how ground 1 was argued. (It is understandable because the conclusions set out in each of pars (a) to (d) of ground 1 are not in themselves inconsistent with the appellant's guilt.)
In the appellant's written submissions, two alternative inferences were formulated, each said to be inconsistent with the appellant's guilt. However, in oral submissions, counsel for the appellant accepted that the appellant's case points simply to one alternative inference said to be open on the evidence and inconsistent with the appellant's guilt (appeal ts 16 ‑ 17).
The appellant contends that the alternative inference reasonably open was that Mr Miguel stopped or slowed his Nissan almost to a stop on the left side of the northern‑bound lane, leaving room for the appellant to overtake the Nissan on its right, without the appellant's car crossing the centre line. Then, without indication, the Nissan turned right, going across the northern lane and centre line into the path of the appellant's vehicle (appeal ts 10, 13).
The question of whether the inference was open is not to be determined on the basis of the whole of the evidence at trial, without regard to the facts found by the magistrate. Whether the inference is reasonably open must, in the course of an appeal, be determined in light of the facts as found by the magistrate.
In my view, the alternative inference proposed by the appellant is not an available inference, because it is inconsistent with the facts found by the magistrate. Indeed, the magistrate considered and rejected this hypothesis, and explained his reasons for doing so.
In his reasons, his Honour specifically rejected the defence submission that there was a possibility that the Nissan entered into the right turn at the last moment, without giving any indication, from a position on the road well to the left of the northbound lane (ts 5/10/12, page 5). In doing so, the magistrate referred to Mr Miguel's evidence that he was on the right side of the northbound lane before he commenced his turn. As I have said, it is clear that the magistrate accepted that evidence. Further, at the end of his reasons he referred, again with evident acceptance, to Mr Miguel's evidence that he was slowing and moving towards the centre of the road. The magistrate specifically rejected the proposition that Mr Miguel might have decided to turn at the last minute.
For these reasons, the alternative inference relied upon by the appellant in support of ground 1 was not available. It is inconsistent with the facts found.
A further difficulty for ground 1 is that it is inconsistent with evidence of Mr Miguel on which he was not challenged in cross‑examination.
Mr Miguel's evidence included the following:
As far as I can recall, I pulled up and looked as clearly as I could, noticed the car coming down that road, Jurien East Road, and proceeded to turn, as I normally would.
…
What was your positioning on Indian Ocean Drive?‑‑‑I can't recall exactly. I pulled up, as I would do any other T‑section, I think. I can't recall.
…
So at the intersection, whereabouts in relation to the width of the road were you - did you position your vehicle before turning?‑‑‑Up on the right‑hand side where you'd normally pull up to turn right‑hand - down that road.
So the right‑hand side of what?‑‑‑Of the left‑hand lane (ts 17/9/12, pages 13 ‑ 14).
Mr Miguel was not challenged in cross‑examination in relation to any of that evidence. In particular, it was not suggested to him in cross‑examination that he had commenced to turn right from a position to the left of the centre of the northern lane. Nor was it suggested to him in cross‑examination that he had made a last minute decision to turn right.
In oral submissions counsel for the appellant submitted that, in this evidence, Mr Miguel merely assumed that he was in an appropriate place to the right of the northbound lane. That was not put to Mr Miguel. The magistrate was not bound to view Mr Miguel's evidence in that way.
Further, the inference invited by the appellant does not sit easily with the evidence of what the appellant told Sergeant Walker, that he saw the Nissan stopped 'in the middle of the road' (ts 5/10/12 page 64).
Further, contrary to the appellant's submission, Mr Davey's evidence did not sustain the alternative hypothesis advanced by the appellant. In short, in my view, the learned magistrate accurately summarised the effect of Mr Davey's evidence, and accommodated it in his findings.
Mr Davey's evidence included, relevantly, the following:
(a)at the point of impact, the left hand tyre of the appellant's utility was just across to the right‑hand side of the white line (ts 17/9/12 page 74 ‑ 75) (exhibit 3I, 3D);
(b)both tyres of the appellant's vehicle were on the left hand side of the centre line at the point when the skid started, with the right tyre being very close to the centre line (ts 17/9/12 page 75 ‑ 76) (exhibit 2A);
(c)the braking of the vehicle commenced before the skid marks (ts 17/9/12 page 76 ‑ 77);
(d)looking at the photos of the damage and the plan, and using a computer reconstruction, it could be concluded that it was impossible that the Nissan turned from a position adjacent to and parallel to the centre line (ts 17/9/12 page 81);
(e)it is not possible to say when the Nissan started to turn right (ts 17/9/12 page 81,87); and
(f)it can be said that given its angle of impact, and the position of the utility at impact, the Nissan must have started turning right from somewhere to the left of immediately adjacent to the centre white line (ts 17/9/12 page 87).
These opinions do not sustain a conclusion that Mr Miguel's car was so far to the left of the centre of the road that the appellant could have safely passed to Mr Miguel's right. Mr Davey's opinion was that Mr Miguel did not commence his turn from a position adjacent to and parallel to the centre line. He could not and did not express an opinion on how far to the left of that position the car was when it started its turn.
For these reasons, I would dismiss ground 1.
Ground 2
The appellant's written submissions advanced in support of ground 2 departed from the substance of ground 2. The substance of ground 2 complains of a failure by the magistrate to take into account the evidence of the prosecution witnesses, in combination with Mr Davey's evidence, to give rise to inferences inconsistent with the appellant's guilt. The bulk of the evidence referred to in the appellant's written submissions in support of ground 2 relates to evidence of Mr Davey, not prosecution witnesses.
In any event, I am not persuaded that the magistrate overlooked or failed to take into account any of the evidence in respect of which this complaint is made. The magistrate was not required to refer to every piece of evidence. The evidence in respect of which the appellant complains is said to support conclusions that, in particular respects, Mr Miguel drove in a manner that breached provisions of the Road Traffic Code 2000 (WA). That was not of central significance. The primary focus of the magistrate was upon the manner of driving of the appellant. Of course, the driving of other vehicles, especially the other vehicle involved in the collision, needed to be taken into account. The magistrate did focus upon the evidence relating to Mr Miguel's driving. The fact that he did not do so in terms of whether there was a breach of the Road Traffic Code is not of great significance.
The point may be illustrated by reference to par 37.1 of the appellant's written submissions. In that paragraph, the appellant complains that the magistrate failed to take into account that Mr Miguel's vehicle was, prior to commencing its right‑hand turn into Jurien Road East, not correctly positioned 'to the left of, parallel to, and as near as practicable to, the dividing line (reg 24(1)(b) Road Traffic Code) of Indian Ocean Drive'. The learned magistrate did not overlook the evidence of the position of Mr Miguel's vehicle on the road. To the contrary, he accepted Mr Davey's evidence that Mr Miguel's vehicle had not turned from a point that was immediately adjacent to and parallel to the centre line (ts 5/10/12 page 5). The magistrate was not required to refer to the Road Traffic Code provision about this.
As I have said in relation to ground 1, the magistrate's findings are consistent with the substance of the evidence of Mr Davey.
Ground 3
The appellant submits that there was no evidence to support the magistrate's finding that the appellant failed to see Mr Miguel's vehicle.
In my opinion, when the magistrate's finding is properly understood there is no merit in that contention. As I have already observed, the appellant accepted that, in making this finding, the magistrate did not mean that the appellant did not ever see Mr Miguel's vehicle. Rather, the magistrate found that the appellant failed to see Mr Miguel's vehicle as early as he should have, had he been paying due care and attention. There was evidence to support that finding.
The appellant also submits that there was no evidence to support the magistrate's finding that the appellant was attempting to overtake Mr Miguel's vehicle on the right by putting his vehicle on the wrong side of the northbound lane of Indian Ocean Drive.
In my view, that submission proceeds on a misunderstanding of the magistrate's finding. The magistrate found that the appellant's failure to see the vehicle ahead, the 'slowly turning vehicle of Mr Miguel', was having regard to all the circumstances, dangerous driving. He then went on to say that the dangerous aspect of his driving was made more so by 'his attempting, it seems, to overtake Miguel on the right and entering, therefore, partly into the opposite, or southbound lane' (ts 5/10/12 page 5). In that finding, in my view, the magistrate said that the appellant attempted to overtake Mr Miguel to the right and, in the course of doing that, then went partly onto the wrong side of the road. The magistrate was not saying that the appellant attempted to put his vehicle on the wrong side of the road. He was merely saying that that was the consequence of his attempt to overtake on the right‑hand side.
That understanding of the magistrate's findings is consistent with the prosecution case as opened (ts 17/9/12, page 5).
Understood in that way, there was ample evidence to support the magistrate's finding. Apart from anything else, it was supported by the evidence of what the appellant told Sergeant Walker. Sergeant Walker's evidence was, relevantly, as follows:
I asked Mr Munro what had happened and he told me that the other vehicle was stopped in front of him in the middle of the road. He stated that he had started to turn right. He said that he went to overtake and then it kept turning right and he braked heavily and that's when the collision occurred. He said that he was travelling at about 100 to 110 kilometres an hour and I also asked him about any indication from the vehicle that had been stopped and he said he was unsure (ts 17/9/12, page 64).
Next, the appellant submits that the magistrate took into account irrelevant considerations such as the weather and road conditions allowing clear visibility, the fact that the road was wider in this region and that it was a straight section of road. I do not accept that submission. In my view, those matters are plainly relevant. They are part of the circumstances in assessing whether the appellant failed to pay sufficient attention as to see Mr Miguel's vehicle when, consistently with the appropriate care and attention, he should have.
Finally, the appellant complains of an observation made by the magistrate to the effect that there was no evidence that Mr Miguel was not indicating. The appellant complains that that proposition reveals a reversal of the onus of proof.
Whether Mr Miguel used his indicator was not a fact required to be proven beyond reasonable doubt. It was not an element of the offence with which the appellant was charged. In any case, even if this part of the magistrate's reasons could have been better expressed, in my view, it is clear on the whole of the findings of the learned magistrate that this observation did not affect his ultimate conclusion of guilt.
In substance, the magistrate found as follows:
(a)Mr Miguel approached where Jurien Road East meets Indian Ocean Drive, slowing almost to a halt, if not to a halt;
(b)Mr Miguel did so with the intention of turning right. He did not make a last minute decision to turn right;
(c)Mr Miguel was towards the right side of the northbound lane, but not immediately adjacent to the centre line, when he commenced his turn;
(d)Mr Miguel's vehicle would have easily been seen by a person in the appellant's position from well back to the south; and
(e)the appellant's failure to see Mr Miguel's vehicle until too late reflected such lack of care and attention on his part that his inattentive driving constituted a danger to the public.
In those circumstances, even if Mr Miguel had not used his indicator, a driver in the appellant's position paying proper attention would, on the magistrate's findings, have readily seen Mr Miguel's vehicle and slowed to a halt or passed safely to the left of the vehicle. In the circumstances, the appellant's manner of driving was dangerous.
For these reasons, ground 3 fails.
Conclusion
For these reasons, I would dismiss the appeal.
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