Nickolson v Keeble
[2007] WASC 231
•4 OCTOBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: NICKOLSON -v- KEEBLE [2007] WASC 231
CORAM: McKECHNIE J
HEARD: 11 SEPTEMBER 2007
DELIVERED : 4 OCTOBER 2007
FILE NO/S: SJA 1026 of 2007
BETWEEN: VICTOR MARK NICKOLSON
Appellant
AND
MARK STEVEN KEEBLE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE L H JONES
File No :AR 2044 of 2006
Catchwords:
Road traffic - Dangerous driving - U-turn on country road in front of traffic - Whether dangerous - Turns on own facts
Courts and judges - Duty of trial court to follow appellate court - Sentencing - Spent conviction order - Whether appropriate
Legislation:
Nil
Result:
Appeal dismissed
Cross-appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms K A Vernon
Respondent: Mr C S Bydder
Solicitors:
Appellant: Carol Adams
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
A v Ray [2001] WASCA 340
A v Staples [2007] WASC 36
Allen v Powell [2000] WASCA 65
Becker v Roberts (1997) 27 MVR 193
Brewer v Bayens [2002] WASCA 271; 26 WAR 510
Canale v Bayens [2001] WASCA 383
Harper v Page [2004] WASCA 267
Higgins v Worthington [2003] WASCA 19
Kaighan v The Queen (1990) 1 WAR 390
Koenig v Alizadeh [2002] WASCA 267
Koenig v Ryan [2001] WASCA 339
Lucas v McPherson [2007] WASC 53
Lynch v Heidrich [2002] WASCA 154; 130 A Crim R 393
Marchesani v Dalton [2006] WASC 204
Nichols v Harnet [2004] WASCA 311
Pennings v Maryan [2000] WASCA 172; 112 A Crim R 285
R v Tognini [2000] WASCA 31; 22 WAR 291
Reynolds v Commissioner of Police [2001] WASCA 203
Rossi v Carter [2000] WASCA 321
Tambyrajah v Gablonski [2004] WASCA 105; 147 A Crim R 18
Tilbrook v Cole [2001] WASCA 94
Webb v Savage [2007] WASC 103
McKECHNIE J:
Introduction
On 24 September 2005 the appellant, a serving police officer, had been on traffic duty all day patrolling the road between Williams and Armadale with Constable Daly when, at about 5.15, he observed a motorcycle, driven by Mr Turnbull, travelling at speed on the opposite side of the road towards Armadale.
At the time, the appellant was heading towards Williams about 400 metres or slightly more beyond the North Bannister Roadhouse. He was near a slip lane which led to the Wandering turnoff. He entered the slip lane, whether in whole or part matters not, and commenced a U‑turn. Mrs Ward was driving her four‑wheel drive vehicle in the same direction as the appellant when he suddenly pulled out in front of her, so close that the two vehicles collided heavily, finishing on the other side of the road. The appellant was seriously injured.
In due course, the appellant was charged with dangerous driving and stood trial in the Magistrates Court at Armadale. On 21 March 2007 the magistrate convicted the appellant of dangerous driving, fined him $500 and made a spent conviction order.
The appellant appeals against the conviction on seven grounds which are particularised. The respondent appeals against the making of the spent conviction order. In my opinion, both the appeal and the cross‑appeal should be dismissed. I will explain why.
Appeal against conviction
The principles relating to the offence of dangerous driving are well settled and summarised in Kaighan v The Queen (1990) 1 WAR 390 at 395. The cases were further analysed by Murray J in Becker v Roberts (1997) 27 MVR 193 and most recently by Hasluck J in Lucas v McPherson [2007] WASC 53.
The grounds of appeal are detailed and complain about a number of findings made and inferences drawn, but there are a number of facts which seem to me to be not in issue or undeniably established.
The appellant attempted a manoeuvre which, if performed in proximity to other vehicles, was dangerous. That manoeuvre was to execute a U‑turn thereby putting his vehicle across any traffic travelling down a country road with a posted speed limit of 90 kph; in other words, traffic moving at speed.
Regardless as to precisely how far away Mrs Ward's vehicle was from the appellant's vehicle when he commenced to turn, it was, on everyones' account, so close that there was no prospect she could take evasive action.
I accept that this is not a case where the appellant misjudged the speed of an oncoming vehicle in executing a turn. No sensible person would have turned if they perceived the presence of another vehicle. It would appear clear that the appellant did not see the oncoming vehicle. However, whether the appellant looked or not, Mrs Ward's vehicle was there to be seen. It was very close. The topography, as shown in the photographs, in the evidence of the witnesses, and to a lesser extent, in the plan, was such that her vehicle was not obscured at the time the turn commenced. Visibility was clear, there was no impediment to the appellant seeing what was there to be seen. In these circumstances, albeit by inadvertence, the appellant executed what was not potentially but actually a dangerous manoeuvre commencing the execution of the U‑turn when another vehicle was so close that a collision was inevitable. The fact the appellant checked his mirror regularly, and indeed checked it at the time that he slowed down and pulled into the left slip lane, does not displace the objective dangerousness of the situation. It shows, and I accept it to be so, that the appellant was normally a careful and cautious driver. However, even careful and cautious drivers can drive dangerously through momentary inattention.
The magistrate found:
The accused was travelling at less than the posted speed limit which, as I have said before, required heightened vigilance on his part, and he should be checking his rear vision mirror regularly and often. He did not see the 4‑wheel drive behind him either before pulling in to the left‑hand turn lane or before executing the U‑turn. Given the evidence of Ms Ward, Mr Coucher and Mr Turnbull and Constable Daly, that the 4‑wheel drive was behind and visible, the only inference I can draw is that he did not look in his rear vision mirror before each of those manoeuvres. Having so found, the defence of mistake of fact raised by the defence, in my view, has no merit.
…
I find that the accused's attempt to execute a manoeuvre which should not have been executed in that designated dangerous position and, in particular, without keeping a thorough and proper lookout for other road users, was dangerous to the public or other persons. Therefore I find that the state has proven beyond reasonable doubt each of the elements of this offence, and I find the accused guilty of dangerous driving pursuant to section 61(1) of the Road Traffic Act.
On the evidence, the magistrate's reasons are correct and should not be disturbed. I am unclear about the reference to 'designated dangerous position'. This may be simply an infelicity of expression or it may be a reference to turning across unbroken lines. However, the particular reason which the magistrate gave for his finding of guilt was the execution of a dangerous manoeuvre without keeping a thorough and proper lookout. The facts amply support that conclusion. As I have said, Mrs Ward's vehicle was there to be seen.
In the circumstances, the manner of driving was a serious departure from the proper conduct of a driver on a highway. The appellant attempted a manoeuvre without keeping a thorough lookout in circumstances where a vehicle was there to be seen and there was no impediment to seeing it.
The magistrate may not have been correct to find that the turn was prohibited by the unbroken white line but this finding does not affect either his ultimate reasoning or the outcome of the appeal. The magistrate's opinion about the use of the left‑hand indicator did not form part of his reasoning to a conclusion of guilt; that reasoning, as I have said, having been based principally on the failure to keep a proper lookout when undertaking a manoeuvre that was, in the circumstances, actually dangerous.
Having reached the conclusion that the driving was dangerous, there was no occasion for the magistrate to consider the alternative and lesser charge of careless driving. It is for these reasons that I dismiss the appeal.
Appeal against making a spent conviction order
The magistrate took into account the good character of the appellant, not only in relation to his driving record but two references which the magistrate described as 'very, very good on your behalf'.
He said:
I accept that you are a conscientious police officer but it seems that after all that time you may have been quite tired. And I accept that it's not going to happen again.
The magistrate also took into account the fact that in the event it was the appellant who had suffered serious injury.
He then turned his attention to the question of a spent conviction order which counsel had sought on behalf of the appellant and which had been opposed by the prosecutor. The magistrate made critical comments about decisions of this court in relation to the operation of the Sentencing Act 1995 (WA) s 45. What he said was:
One of the things that is always of great concern and gives me some degree of consternation, I don't really know what the word means, that spent convictions should be handed out 'sparingly'. Does that mean that if you've had one - that you're not allowed to have any more if you've already had one, or does that mean that if I've got 100 people in the court today I'm only allowed to hand out one, or is it that I'm allowed to hand out two? I mean, it's the most ridiculous thing that - with all due respect to our superior courts, it's the most ridiculous thing I've ever heard. 'Only to be used sparingly.' Of course it can be only used sparingly. The term should be that each application should be taken on its merit, and some of these ridiculous decisions by the superior courts, with respect, make me have some sort of a - I just don't quite understand it.
This was quite wrong. It is the duty of trial courts to apply decisions of courts of appeal. Otherwise, there is judicial anarchy. It was not for the magistrate, as the trial judge, any more than it is for me sitting on appeal, to decline to follow binding authority.
The 'sparingly' principle was enunciated in R v Tognini [2000] WASCA 31; 22 WAR 291 where Murray J (Malcolm CJ and Wallwork J agreeing) said:
Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre-conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. It would follow in my view from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable. [24]
The principle was affirmed by the Full Court in Brewer v Bayens [2002] WASCA 271; 26 WAR 510 by Burchett AUJ (Wallwork and Wheeler JJ agreeing) at [14]. It has been followed by single judges of this court in Rossi v Carter [2000] WASCA 321; Allen v Powell [2000] WASCA 65; Koenig v Ryan [2001] WASCA 339; Koenig v Alizadeh [2002] WASCA 267; Webb v Savage [2007] WASC 103; A v Ray [2001] WASCA 340; A v Staples [2007] WASC 36; Canale v Bayens [2001] WASCA 383; Harper v Page [2004] WASCA 267; Marchesani v Dalton [2006] WASC 204; Nichols v Harnet [2004] WASCA 311; Tambyrajah v Gablonski [2004] WASCA 105; 147 A Crim R 18; Lynch v Heidrich [2002] WASCA 154; 130 A Crim R 393; Higgins v Worthington [2003] WASCA 19; Tilbrook v Cole [2001] WASCA 94; Pennings v Maryan [2000] WASCA 172; 112 A Crim R 285; Reynolds v Commissioner of Police [2001] WASCA 203.
The magistrate said that he did not quite understand why spent conviction orders should be made sparingly. That is regrettable but he was nevertheless required to follow authority.
The magistrate set out reasons why he considered a spent conviction order was appropriate noting the previous good character, the fact that he considered that there had not been a day gone past when the appellant had not reflected on the accident or collision. He then said he was satisfied that the appellant would never re‑offend in a like or any manner 'particularly in the job you are, and my understanding is that you have been earmarked for rapid promotion. So far as that's concerned, that indicates that it won't happen again'.
Correctly, he did not characterise the offence as trivial but, in view of his finding of the previous good character of the appellant, the appellant satisfied s 45(1)(b).
It is necessary to look a little more at the circumstances of the offence. Unlike the offence of reckless driving, there is no necessary element of wilfulness or intention in the offence of dangerous driving. The circumstances of this offence did not indicate any moral blameworthiness on the part of the appellant. Indeed, the most likely explanation is a momentary lack of attention leading to a sudden dangerous situation.
The magistrate's findings that the offender was unlikely to commit such an offence again were open. Objectively, of course, any driver might, through inadvertence, commit an offence of dangerous driving at any time. However, within the general scheme of the Sentencing Act the finding that this appellant was unlikely to commit the offence was clearly open.
The magistrate then turned his attention as to whether the offender should be relieved immediately of the adverse effect that the conviction might have. This is an exercise of sentencing discretion and an appeal court will be slow to interfere with such an exercise unless there is manifest error. Here there is manifest error. The magistrate was wrong in failing to take account of the public interest consideration such as those outlined in Brewer v Bayens that require a sparing use of the power as set out in Tognini.
That said, however, I consider that the magistrate's conclusion is nevertheless plainly right. The criteria under s 45 are satisfied. The overall circumstances of the offence and the character of the appellant compel a conclusion that this is an appropriate case for a spent conviction order. There is no reason for general or specific deterrence in the continued recording of a conviction against the appellant. Having regard to the appellant's character, employment, prior good driving record and the circumstances of the offence, the case for a spent conviction order is compelling. It is for these reasons that the cross‑appeal is dismissed.
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