Nettlefold-Calam v Woodhouse
[2020] TASSC 35
•6 July 2020
[2020] TASSC 35
COURT: SUPREME COURT OF TASMANIA
CITATION: Nettlefold-Calam v Woodhouse [2020] TASSC 35
PARTIES: NETTLEFOLD-CALAM, Lillian Mae
v
WOODHOUSE, Rebecca (Senior Constable)
FILE NO: LCA 218/2020
DELIVERED ON: 6 July 2020
DELIVERED AT: Hobart
HEARING DATE: On the papers
JUDGMENT OF: Estcourt J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review –Appeal against findings of guilt in respect of various driving related charges – Reckless driving – Open to magistrate to find charges of reckless driving beyond reasonable doubt – Common assault – Applicant entitled to act in self-defence – Magistrate erred in finding that applicant used excessive force – Finding of excessive force not reasonably open on evidence – Magistrate erred by drawing inference that was not open on factual basis adopted for decision – Failure to stop and assist in case of accident – Applicant unaware that complainant may have been injured – Charge not proven beyond reasonable doubt.
Police Offences Act1935 (Tas), s 35(1).
Traffic Act1925 (Tas), ss 31(1), 33(2), 101(4).
McBride v The Queen (1967) 40 ALJR 57; Palmer v The Queen [1971] AC 814; R v Lawrence [1981] 1 All ER 974; Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, referred to.
Aust Dig Magistrates [1350]
REPRESENTATION:
Counsel:
Applicant: G Stevens
Respondent: D Earley
Solicitors:
Applicant: Murdoch Clarke
Respondent: Director of Public Prosecutions
Judgment Number: [2020] TASSC 35
Number of paragraphs: 54
Serial No 35/2020
File No LCA 218/2020
LILLIAN MAE NETTLEFOLD-CALAM v
SENIOR CONSTABLE REBECCA WOODHOUSE
REASONS FOR JUDGMENT ESTCOURT J
6 July 2020
The proceedings
The applicant, Lillian Mae Nettlefold-Calam, moves this Court, by notice to review, to set aside the orders of Chief Magistrate Geason, made on 29 July 2019, whereby her Honour found proved, charges 1, 3 and 4 on complaint number 7905/18, laid by the respondent, Senior Constable Rebecca Woodhouse, against the applicant, charging the applicant with the offence of reckless driving, contrary to s 31(1) of the Traffic Act 1925, the offence of assault, contrary to s 35(1) of the Police Offences Act 1935, and the offence of failing to stop and stay at the scene of a crash, contrary to s 33(2) of the Traffic Act.
The grounds of the notice to review as to the offence of reckless driving are as follow:
"1The learned magistrate erred in law in holding that the applicant's driving was reckless.
2The learned magistrate erred in law in failing to determine objectively whether the risk of injury or damage was obvious and serious by reference to the standard of an ordinarily prudent driver in the circumstances that applied at the time of the driving."
The grounds of the notice to review as to the offence of assault are as follow:
"3The learned Magistrates erred in fact and/or law in failing to consider the lawfulness of the applicant's application of force in the circumstances as the appellant believed them to be …"
The grounds of the notice to review as to the offence of failing to stop and stay at the scene of a crash are as follow:
"5The learned magistrate erred in fact in holding that the applicant must have known that the complainant was dragged by her car and must have known that the appellant was on the road.
6The learned magistrate erred in law in holding that leaving the scene to report an assault was not in connection with the accident and therefore the statutory defence was not available to applicant."
The competing versions of events
It appears to have been common ground before the learned magistrate that at approximately 12 noon on 4 May 2018, the complainant was driving from Tinderbox to Hobart via Brightwater Road. The applicant was driving from Blackmans Bay to Tinderbox to take her dogs for a walk, and was also driving along Brightwater Road. The complainant and the applicant had been friends since school, but in about September 2017 their friendship broke down.
The prosecution case was that whilst each of them was driving along Brightwater Road they came across each other, and the applicant reacted by veering in front of the complainant's car which caused the complainant to veer to the left of her lane and come to a stop. It was then alleged that the applicant then went over to the complainant's driver side window, and as the complainant was trying to use her phone the applicant took it and also removed the car keys from the ignition.
It was further alleged that the complainant had a takeaway coffee in her car and threw it in the direction of the applicant. The applicant was then said to have returned to her vehicle with the phone and keys. The complainant got out of her car and reached in through the driver's side window of the applicant's car to try and obtain her keys and phone. It was the prosecution case that the complainant believed that her keys and phone were sitting on the front passenger seat. It was alleged that while the complainant was trying to obtain her phone and car keys the applicant moved her car forward, then reversed it, and then drove off.
It was the prosecution case that, as the applicant's car was moving, the complainant's arm was caught through the window and although at first she was able to run alongside the car whilst it was moving, when the applicant increased speed, the complainant was dragged for approximately 20 metres. There appears to be little dispute that the complainant's arm eventually became free and she hit her head and then her buttocks on the bitumen. She was then left on the road. She tried to get up but she said that her head was pounding and felt heavy, and she was not able to do so. She was then assisted by a Mr Colin Courtney who was a truck driver who came along and saw her lying in the middle of the road. And then another man, Mr Ronald Cruikshank, also came along and assisted the complainant.
The applicant's position was first articulated by her in the interview that she gave to police on the day of the alleged offending. She claimed that she was driving to Tinderbox to take her dogs for a walk and that as she travelled along Brightwater Road she saw the complainant's car. She said that the complainant was driving in the middle of the road and that meant that as she was unable to get past her, so she had to stop her own car. The applicant said that the complainant also stopped her car and began yelling at the applicant. The applicant said that they then both got out of their cars and there was a heated verbal exchange. The applicant said that she then got back in her car to drive away, however the complainant came to her driver's side window and started scratching at her neck and chest area and holding onto and pulling her hair.
The applicant said that because of this conduct she needed to drive off because she was under attack and she said that her head was effectively being pulled out of the window. She said that the complainant had hold of her hair, that she could not really see what was going on, and that she drove forward, but hit the embankment off to the side of the road. She said that she then reversed her car and then she drove off towards Blackmans Bay. As she was driving, her car then experienced some mechanical issues so she turned left into Burwood Road and the car came to a stop. She left the car there and contacted her father and asked him to come and get her, which he did. The two of them then went to the Kingston Police Station to report that the applicant had been assaulted.
The magistrate's basis for findings
The learned magistrate was satisfied from evidence of the location of the complainant's vehicle when it came to rest, the presence of coffee-smelling liquid on the roadway, and the location of the coffee cup, that the complainant's account of how the incident started was reliable. Those pieces of evidence her Honour observed, supported the complainant's version that she had to pull over because the applicant cut her off, that the applicant had gone over to the complainant's driver's side window, and that the complainant had then thrown a cup of coffee in her direction, which spilt on the road. The magistrate also observed that there was ample evidence of the complainant's injuries and damage to her footwear, to establish that she was dragged by the car.
Her Honour observed that how and why the complainant was dragged "is obviously a point of contention". She observed that there was some bruising to the complainant's right wrist hand which could be considered consistent with her hand in some way being connected to the car as she was being dragged. And her Honour noted that the complainant had indicated that the injury to her right wrist area was because of her being dragged. The complainant claimed that she was dragged because she had gone over to the car and was reaching in to try and retrieve her phone and car keys, when the applicant started to move the car. It was then, the complainant said that she started to scratch and pull the applicant's hair. It was at that point she claimed that her right arm became caught somehow, and she had been dragged along the road until her arm became free and she hit the bitumen.
Her Honour observed that, on the other hand, the applicant in her interview with police, claimed that the complainant had her by the hair and was scratching at her and effectively pulling her head out of the window, attacking her. She claimed that in an effort to protect herself and defend herself, her reaction was to remove herself from the situation and drive off. In the course of moving her car forward she says she hit the embankment and then reversed her car. She said that the complainant still had hold of her hair and was attacking her and would not let go, so she just drove off.
In my view, it would have been open to the learned magistrate to have embarked on a credit based assessment of the competing versions of the events surrounding the physical interaction and the driving off, particularly when her Honour had preferred the complainant's version as to the circumstances of the early parts of the encounter, based on largely objective or corroborated evidence. However what her Honour did was to proceed to assess ingredients of the alleged offences against the facts as asserted by the applicant. Her Honour said in her reasons, delivered orally:
"She says it was because Ms Nettlefold-Calam started to drive the car while she was connected to the car. And Ms Nettlefold-Calam says it was because Ms McLean was scratching at her and holding on to her and pulling her hair, and screaming at her, that she had to drive to get away from Ms McLean attacking her. So, it seems to me that I'm not really in a position in my view to determine whether Ms McLean started scratching at Ms Nettlefold-Calam and was pulling her hair because Ms Nettlefold-Calam had started driving while she was attached to the car. Or whether it was because of Ms McLean scratching and pulling Ms Nettlefold-Calam's hair that led to Ms Nettlefold-Calam driving off.
In those circumstances I'll proceed on the basis that was articulated by Ms Nettlefold-Calam in her interview with police, and consider the charges based on her account of her driving off. And it's only in relation to that aspect that I accept what she said in her interview. And whether or not I could be satisfied beyond a reasonable doubt that she was driving recklessly, has assaulted Ms McLean. And in those circumstances whether she's failed to stop at a scene and give assistance which was necessary and practicable and within her power – well, in the circumstances and within her power to do so."
Reckless driving
The learned magistrate proceeded accordingly, and in this way dealt first with the charge of reckless driving. Her Honour said:
"The next charge to consider is charge 1, which is the reckless driving. For the prosecution to prove this charge consistent with R v Lawrence [1981] 1 All ER 974, which was adopted by his Honour Pearce J in Lustid v Van der meer [2012] (sic) Tasmanian Magistrate Courts Decision number 8 prosecution must prove beyond a reasonable doubt that Ms Nettlefold-Calam was driving in such a manner as to create obvious and serious risk of causing physical injury to some other person who might be using the road, or of doing some substantial damage to property.
And secondly that in driving in that manner Ms Nettlefold-Calam did so without having any thought to the possibility of there being any such risk, or having recognised that there was some risk involved that nonetheless she went on to take the risk."
The learned magistrate directed herself that accepting that the complainant was dragged along on the road by the applicant driving her car, her Honour needed to consider whether that applicant's driving in fact created an obvious and serious risk of causing physical injury to some other person who might be using the road, or of doing some substantial damage to property.
Her Honour then proceeded to reason as follows:
"In considering this charge I take into account that it's apparent from the photographs in P2, numbers 3 to 6 and 21 to 24, that oil is leaking from Ms Nettlefold-Calam's car, and there is a line of oil being deposited in the middle of the road. That is consistent with Ms Nettlefold-Calam driving in the middle of the road, and as with – however it came about to happen there's - as far as I'm concerned clear evidence that Ms McLean is being dragged. So she's driving in the middle of the road with a person being dragged to the driver's side of her car. If another car was travelling in the other direction that other car would need to take some form of evasive action to avoid colliding with Ms Nettlefold-Calam's car, and not hitting Ms McLean who is being dragged.
And – and in those circumstances in my view Ms Nettlefold-Calam's driving is creating the abovementioned risk. Secondly in relation to the second part of the consideration Ms Nettlefold-Calam must have known that Ms McLean was being dragged by her when she was driving the car. I do not accept that she was oblivious to her being dragged. Ms McLean is right next to her at the driver's side window. Ms Nettlefold-Calam must have realised that she was there, that she was attached to the car however that had occurred, and that there would be some risk to other road users given she was travelling in the middle of a narrow road; a road that links Tinderbox and Blackmans Bay; a road that she could expect would have a reasonable amount of traffic flow in the middle of the day.
And despite the obvious risk to other road users she nonetheless continued to drive dragging Ms McLean and taking the risk. So, in those circumstances I'm satisfied beyond a reasonable doubt that Ms Nettlefold-Calam drove recklessly by driving with a person holding on to her vehicle and dragging them along the roadway. So in those circumstances charge 1 of reckless driving is proved."
Discussion as to reckless driving
The notice of appeal asserts that the learned magistrate erred in law in finding that the applicant's driving was reckless. I do not understand that assertion. The question for her Honour was a mixed question of fact and law.
The classic formulation of the offence of reckless driving is found in R v Lawrence [1981] 1 All ER 974, 977. In that case, Lord Diplock, with whom Lords Hailsham, Tullybelton, Roskill and Bridge agreed, said at 982:
"Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it.
In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things: first, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and, second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had none the less gone on to take it. (Emphasis added.)
It is for jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves.
If satisfied that an obvious and serious risk was created by the manner of the defendant's driving, the jury are entitled to infer that he was in one or other of the states of mind required to constitute the offence and will probably do so; but regard must be given to any explanation he gives as to his state of mind which may displace the inference." (Emphasis added.)
The learned magistrate may be taken to have instructed herself in accordance with Lawrence.
In McBride v The Queen (1967) 40 ALJR 57, Barwick CJ said at 59:
"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."
Her Honour may be taken to have been alive to the need to consider "the potentiality in fact of danger". She referred to the fact that there would be some risk to other road users given that the applicant was travelling in "the middle of a narrow road; a road that links Tinderbox and Blackmans Bay; a road that she could expect would have a reasonable amount of traffic flow in the middle of the day".
The applicant's counsel, Mr Stevens, submits that it was not a particular of the complaint that the applicant drove in the middle of the road, and nor was it a particular that the speed at which the applicant drove or any other act of driving was reckless. He contends that without an amendment to the complaint, the charge could not be found proved on the basis of the position of the vehicle on the road. He argues the complaint focuses on the fact of the location of the complainant and that while that may create, and in all likelihood did create, a risk to the complainant, was not a person who "might happen to be using the road".
As I apprehend the learned magistrate's reasons she was clearly concerned with the potential danger to other road users and not to the complainant. It was not necessary that the complaint specify that the applicant drove in the middle of the road. The road was narrow and the complainant was attached to and being dragged or running alongside the driver's side front door of the applicant's vehicle. The complainant must of necessity have been in or close to being in the path of any oncoming vehicles.
The applicant also asserts in the grounds on the notice to review that the learned magistrate erred in law in failing to determine objectively whether the risk of injury or damage was obvious and serious by reference to the standard of an ordinarily prudent driver in the circumstances that applied at the time of the driving. In my view that is not so, on a fair reading of what her Honour said. She said this:
"So she's driving in the middle of the road with a person being dragged to the driver's side of her car. If another car was travelling in the other direction that other car would need to take some form of evasive action to avoid colliding with Ms Nettlefold-Calam's car, and not hitting Ms McLean who is being dragged.
And – and in those circumstances in my view Ms Nettlefold-Calam's driving is creating the abovementioned risk" (Emphasis added.)
While that formulation could have been better expressed, it is tolerably clear, to my mind, that her Honour was describing the applicant's conduct in the third person followed by an articulation of the potentiality for risk and then formulated the view, expressed in the first person, that such a risk had been created by the described conduct.
In my view, it was open to the learned magistrate to find, as she did, that, judged objectively according to the standard of the ordinary prudent driver, the applicant was driving her vehicle in such a manner as to create "an obvious and serious risk" of causing physical injury to some other person who might happen to be using the road, or of doing substantial damage to property, and that in driving in that manner she did so without having given any thought to the possibility of there being any such risk.
The obvious and serious risk was that another vehicle happening along on the narrow road that links Tinderbox and Blackmans Bay, of which on the evidence alone of the arrival of Messrs Courtney and Cruickshank there was a likelihood, might be driven by a person who, in order to avoid hitting the complainant on or very close to that driver's side of the road, drove off the road on one side or the other, or drove into the applicant's vehicle.
It was open to the learned magistrate to find the charge of reckless driving proved beyond reasonable doubt, and in doing so, her Honour did not apply a wrong legal test.
Assault
The learned magistrate's reasons for decision on the charge of assault were as follows:
"Charge 3 is the common assault. In considering this charge I'm proceeding on the basis that Ms Nettlefold-Calam was being scratched at and that her hair was being pulled by Ms McLean. So she was entitled to defend herself and use some force that was reasonable to abate the force being applied by Ms McLean.
The force used by Ms Nettlefold-Calam is to drive the car for approximately 20 metres with Ms McLean being dragged along the road because she's attached somehow to the car. In my view once Ms Nettlefold-Calam moves her car she is committing a voluntary and intentional act knowing that Ms McLean is at her window and attached to the car. She nevertheless moves the car and then when she turns in to the embankment, reverses, and then she goes forward, she speeds up, she drives off all the while dragging Ms McLean. So I need to consider is the force used by Ms Nettlefold-Calam excessive. And in my view clearly that force is excessive.
To drive the car when it must have been obvious to her that Ms McLean was being dragged alongside the car for approximately up to 20 metres Ms Nettlefold-Calam has used force beyond that was necessary to abate the situation. She could have wound up her window; she could have tried to push Ms McLean away, are some of the examples. But instead she drove the car with her attached and dragged her in an application of force well beyond what was necessary. And in those circumstances I'm satisfied beyond a reasonable doubt that the prosecution have proved that Ms Nettlefold-Calam was not acting in self-defence when she drove and dragged Ms McLean, and that she assaulted her by driving her car with Ms McLean attached through the window and being dragged along the roadway."
The applicant submits that it was assumed by the learned magistrate that the applicant was, in the circumstances as she believed them to be, justified in using force to defend herself and the attack upon her occurred while she was seated in the car. No finding was made which excluded the prospect that the complainant was attached to the car by holding onto the applicant's head.
In those circumstances it is submitted on behalf of the applicant that in applying force, she was not required to measure the exact measure of defensive action required and a split second decision, in the circumstances of the attack upon her, the applicant's action in driving at a moderate pace was not excessive.
Discussion as to assault
Juries are invariably instructed in this State in accordance with a form of words that has its origin in Palmer v The Queen [1971] AC 814 per Lord Morris of Borth-y-Gest, speaking for the Judicial Committee, said at 831:
"If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action."
Reasonable minds may often differ about whether the force used in self-defence is, objectively regarded, excessive. The learned magistrate stated that the applicant moved her car off and then when she turned in to the embankment, she reversed, and then moved forward, speeding up and driving off, "all the while dragging the complainant". As will be seen that is not entirely accurate.
Even so, on the other hand, her Honour's suggestions that the applicant could have wound up her window or could have tried to push the complainant away are somewhat hollow if the applicant who had been scratched sufficiently to draw blood and had her hair pulled obviously quite hard, was still being attacked.
Moreover, if having acted in self-defence the applicant drove off with the complainant pulling her hair, but the complainant subsequently became momentarily caught on the car, the applicant could not, in my view, be reasonably adjudged to have used excessive force unless she realised that fact.
The learned magistrate was proceeding on the basis of what the applicant had told police in her record of interview as to her account of driving off, and was considering the charge of assault on that basis. The applicant had told police:
"We had a heated conversation. I got back into my car, tried to reverse around, she came at me. As you can see, I've got scratches on me. I don't really, really remember exactly what was going on at that stage but I was just trying to get out of there. So I hit a kerb. I've hit a kerb when I've tried to reverse so 'cause our cars were face to face, I tried to reverse out and she reached into the car and she grabbed onto my, like tried to grab onto me and she grabbed my hair and as soon as she grabbed onto my hair I knew I had to go, so I just, you know, I just drove and drove and drove and drove I couldn't see anything, my rear vision mirror was already like to the side, so I had no view of what had happened to her. I was just getting out of there." (Emphasis added.)
The learned magistrate accepted that factual basis because, as her Honour said:
"…it seems to me that I'm not really in a position in my view to determine whether Ms McLean started scratching at Ms Nettlefold-Calam and was pulling her hair because Ms Nettlefold-Calam had started driving while she was attached to the car. Or whether it was because of Ms McLean scratching and pulling Ms Nettlefold-Calam's hair that led to Ms Nettlefold-Calam driving off."
In my view, accepting the applicant's version as given to police, it cannot be reasonably concluded that the respondent had proved beyond reasonable doubt that the applicant was not acting in self-defence, because, objectively, the force she used in defending herself was excessive. It was either open to the complainant to have let go of the applicant's hair, or if she had done so but became caught on the car, there is nothing, on the applicant's version to police that could justify a finding that the applicant knew that fact but continued to drive. It must be borne in mind that the total distance driven by the applicant before the complainant dropped to the roadway, either because she had pulled out the applicant's hair, or she became disentangled from the vehicle, or both, was only some 20 metres. Such a distance is quickly covered, even by a vehicle moving at a moderate speed from a stationary position.
Crawford CJ set out the relevant principles to be applied on a review such as this in Phillips v Arnold [2009] TASSC 43, 19 Tas R 21 at [46] as follows:
"[46] Those principles include the following. The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117."
The question is whether upon the evidence the learned magistrate might, as a reasonable person, have come to the conclusion to which she did, and, in my view, the answer is that on the evidence of the applicant's version of events as accepted by her Honour, a finding of excessive force was not a reasonable conclusion.
Failing to stop at the scene of a crash
The learned magistrate's reasons for decision on the charge of failing to stop at the scene of the incident were as follow:
"The final charge for consideration is charge 4, driver involved in a crash and failing to stop, s33(2) of the Traffic Act. For the prosecution to succeed on this charge they must prove beyond a reasonable doubt that Ms Nettlefold-Calam was the driver of a vehicle on a public street that was involved in a crash. Now, s33(1) of the Traffic Act defines 'crash', which includes, "a collision between two or more vehicles or any other accident or incident in which a person is or may have been killed or injured, property is or may have been damaged, or an animal in someone's charge is or may have been injured."
In the circumstances of this case I could be satisfied that Ms Nettlefold-Calam was the driver of a car that was involved in an incident in which a person was or may have been injured. Prosecution must also prove beyond a reasonable doubt that the driver involved in the crash failed to stop immediately and stay at the scene of the crash and give any assistance which may be necessary or practicable in the circumstances and which is in the driver's power to give. The evidence in this case supports in my view that Ms Nettlefold-Calam did not stop immediately once Ms McLean was no longer being dragged by the car; that she did not stay at the scene and she did not give any assistance which may be necessary or practicable in the circumstances and which would have been in her power to give.
The evidence is that instead of staying she drove until her car was no longer driveable. She then contacted her father to come and assist her. He did, but then they went to the Kingston Police Station to report her being assaulted. Nothing to do with what may have happened or how she left Ms McLean. The defence rely upon s33(3) and (4) of the Traffic Act as defences to that charge. Subs(4) I'll deal with first. It states that, the defence to a charge under this section that the driver was unaware that the crash had occurred and that the lack of awareness was not due to careless or recklessness. As previously mentioned I do not accept that Ms Nettlefold-Calam was unaware that she had been dragging Ms McLean, and she must also have been aware when she was no longer being dragged, and that the only inference then is that she's on the road having been dragged for that approximate 20 metres.
It was entirely within her power to stop her car, stay at the scene of the crash, and give any assistance which may be necessary or practicable in the circumstances. However, once Ms McLean was no longer being dragged and must have been on the road Ms Nettlefold-Calam failed to stop. So in my view that defence fails because I don't accept that she wasn't aware. Subs(3), the other defence that's relied upon, says, 'the driver is not guilty of an offence under this section if he or she leaves the scene of the crash solely for the purpose of seeking medical police or other emergency assistance in connection with the crash.'
Ms Nettlefold-Calam left the scene to get away from Ms McLean who was scratching at her and pulling her hair. She then seeks police assistance to report that she has been assaulted by Ms McLean. The assistance Ms Nettlefold-Calam is seeking is not in connection with the crash; that is that Ms Nettlefold-Calam is not letting the police know that she has dragged Ms McLean along the road for approximately 20 metres, and she's no longer being dragged, and she doesn't know what's happened to her. She's only reporting that she has been assaulted.
It's important to keep in mind that the crash is the incident of Ms Nettlefold-Calam dragging Ms McLean along the road for up to 20 metres, and then no longer dragging her, and it's a situation where somebody may have been injured. So, in those circumstances I'm satisfied beyond a reasonable doubt that Ms Nettlefold-Calam has been a driver involved in a crash who failed to stop and – failed to stop at the scene of the crash and give assistance which was necessary and practicable in the circumstances and which was in her power to give. So, that charge is also proved."
The applicant submits that the learned magistrate erred in fact in holding that the applicant must have known that the complainant was dragged by her car and must have known that the complainant was on the road. It is submitted that there is no evidential or legal basis for the learned magistrate to reject the applicant's statement to police as to her knowledge. It is submitted that it was only open to the learned magistrate to find that the applicant "must have known" that the complainant was alongside the car, pulling at her hair.
The applicant further submits that the learned magistrate erred in law in holding that leaving the scene to report an assault was not in connection with the accident, and therefore the statutory defence was not available to applicant.
The applicant submits:
"118 'Assault' is a descriptor of the circumstances as the applicant believed them to be. That she was involved in an incident or accident for the purposes of the section must have necessarily been contained in her recounting of events, even if that does not align with what became the prosecution case.
119 The applicant left, it is submitted, to avoid further violence to her but also to report the incident to police, that is, to obtain police assistance in connection with the crash." (Emphasis added.)
Discussion as to failing to stop
Section 33 of the Traffic Act, provides as follows:
"33 Duty of driver to stop and assist in case of accident
(1) In this section –
crash includes –
(a) a collision between 2 or more vehicles; or
(b) any other accident or incident in which a person is or may have been killed or injured, property is or may have been damaged, or an animal in someone's charge is or may have been injured;
driver means a person –
(a) driving a vehicle; or
(b) riding, leading or otherwise in charge of an animal.
(2) A driver who is involved in a crash must –
(a) stop immediately; and
(b) stay at the scene of the crash; and
(c) give any assistance which may be necessary or practicable in the circumstances and which it is in the driver's power to give.
Penalty: Fine not exceeding 80 penalty units or imprisonment for a term not exceeding 2 years, or both.
(3) The driver is not guilty of an offence under this section if he or she leaves the scene of the crash solely for the purposes of seeking medical, police or other emergency assistance in connection with the crash.
(4) It is a defence to a charge under this section that the driver was unaware that the crash had occurred and that the lack of awareness was not due to carelessness or recklessness."
I accept the applicant's submission that the learned magistrate erred in fact in holding that the applicant must have known that the complainant was dragged by her car and must have known that the complainant was on the road. Her Honour's error, in my view, was, once having decided to approach all charges on the basis of the applicant's account to police, to have then proceeded to draw an inference that was contrary to that account.
Her Honour said, "I'll proceed on the basis that was articulated by Ms Nettlefold-Calam in her interview with police, and consider the charges based on her account of her driving off." (Emphasis added.) That acceptance was not confined to the charge of reckless driving. Her Honour said that would be the basis of her assessment of whether or not she could be satisfied beyond a reasonable doubt that the applicant "was driving recklessly, has assaulted Ms McLean. And in those circumstances whether she's failed to stop at a scene…".
Having said that, and given that the applicant made no admissions in her police interview that she was aware as to what happened to the complainant, her Honour moved away from the applicant's version and drew a contrary inference based on the objective features of the case, saying, as already noted:
"Ms Nettlefold-Calam must have known that Ms McLean was being dragged by her when she was driving the car. I do not accept that she was oblivious to her being dragged. Ms McLean is right next to her at the driver's side window. Ms Nettlefold-Calam must have realised that she was there, that she was attached to the car however that had occurred … As previously mentioned I do not accept that Ms Nettlefold-Calam was unaware that she had been dragging Ms McLean, and she must also have been aware when she was no longer being dragged, and that the only inference then is that she's on the road having been dragged for that approximate 20 metres." (Emphasis added.)
That inference was probably a reasonable one to draw, as would have been an objective acceptance of the applicant's version, given that she was in a state of arousal and defending herself from an assault. However the evidence the learned magistrate accepted for the purpose of the disposition of the charges, comprised the applicant's account to police, and the applicant maintained in her interview, the position she first articulated, namely that "I couldn't see anything, my rear vision mirror was already like to the side, so I had no view of what had happened to her. I was just getting out of there."
Section 101(4) of the Traffic Act provides as set out above, that it is a defence to a charge of failing to stop if the driver was unaware that the crash had occurred and that the lack of awareness was not due to carelessness or recklessness. Given the learned magistrate's unqualified acceptance of the complainant's account to police for the purpose of her consideration of all charges, her Honour, acting reasonably ought to have come to the conclusion, on the balance of probabilities, that the applicant was unaware that the complainant may have been injured because she was in flight from an attack, and also because the rear view mirror on her vehicle had been moved. Such an explanation cannot in my view be characterised as a lack of awareness due to carelessness or recklessness.
The applicant's submission that she left the scene to avoid further violence to her but also to report the incident to police, "that is, to obtain police assistance in connection with the crash" is wholly misconceived. On the applicant's account she was unaware that there had been a "crash".
Disposition
It follows from all that I have said that grounds 3 and 5 of the notice to review succeed, and as a result the learned magistrate's findings of guilt and orders of conviction on the charges of assault and failing to stop immediately and stay at the scene of a crash should be set aside and be replaced by findings that those charges are not proven beyond reasonable doubt.
I will hear counsel as what should occur as to re-sentencing, given that the learned magistrate imposed a single sentence in respect of those offences, as well as that of reckless driving, which remains undisturbed, grounds 1 and 2 of the notice to review having failed.
Re-sentence
Since publishing these reasons I have received written submissions from counsel as to resentencing. Having considered those submissions I order that the sentence imposed by the learned magistrate on 18 December 2019 with respect to charges 1, 3 and 4 on complaint number 7905/18 be quashed, and that in relation to charge 1 the applicant be disqualified from holding or obtaining a driver's licence for a period of four months, cumulative to the period of 3 months disqualification imposed by the learned magistrate on charge 6 of the complaint (a charge not the subject of this application to review).
I further order that the Community Correction Order made by the learned magistrate be varied so that the applicant is ordered to perform a total of 44.5 hours of Community Service, which is the number of hours she has performed to date.
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