Osman v Police - [2007] SASC 317

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
OSMAN v POLICE
[2007] SASC 317
Judgment of The Honourable Justice Duggan
28 August 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
Appeal against conviction for failing to give way to oncoming vehicle when turning right across an intersection - appellant's vehicle collided with oncoming vehicle - appellant claimed that oncoming vehicle proceeded through intersection against a red light - whether duty to give way - Held: duty to remain stationary until safe to proceed remained. Appeal dismissed.
Australian Road Rules R 62(c), referred to.
Rucioch v Police [2004] SASC 127, applied.

OSMAN v POLICE
[2007] SASC 317
Magistrates Appeal

Duggan J. The appellant was convicted in the Adelaide Magistrates Court of failing to give right of way contrary to rule 62(c) of the Australian Road Rules. She was fined $100 and ordered to pay costs and court fees. She now appeals against conviction.
The alleged offence occurred at the intersection of Payneham, Montacute, Glynburn and Lower North East Roads at Glynde. It is convenient for present purposes to regard Montacute Road as the extension of Payneham Road and Lower North East Road as the extension of Glynburn Road.
At about midday on 9 December 2005 the appellant drove along Payneham Road intending to turn right into Glynburn Road. Another driver, Ms Taylor, was driving her vehicle along Montacute Road intending to cross the intersection and proceed down Payneham Road.
As the appellant entered the intersection, there was another vehicle in front of her vehicle travelling in the same direction. The driver of this vehicle turned right into Glynburn Road. The appellant entered the intersection and brought her vehicle to a halt. However, she then commenced to turn right and her car collided with the vehicle being driven through the intersection by Ms Taylor.
Rule 62(c) of the Australian Road Rules provides:
A driver turning at an intersection with traffic lights must give way to –
(c)if the driver is turning right – any oncoming vehicle that is going straight ahead or turning left at the intersection (except a vehicle turning left using a slip lane).
The requirements of the duty to give way are prescribed in the Australian Road Rules as follows:
(a) if the driver … is stopped – remain stationary until it is safe to proceed; or
(b) in any other case – slow down and, if necessary, stop to avoid a collision.
It was alleged by the prosecution at the hearing before the magistrate that the appellant was required to remain stationary in the intersection until it was safe to proceed. It was argued that, as Ms Taylor’s vehicle was an oncoming vehicle going straight ahead, the appellant was required to give way to it.
The appellant gave evidence before the magistrate. On her version she drove her vehicle into the intersection and pulled up behind another vehicle which was also about to turn right. The appellant said she saw Ms Taylor’s vehicle approaching the intersection from the opposite direction and assumed it was going to turn left. However, she did not observe an indicator in operation on Ms Taylor’s vehicle and, as it turned out, the assumption which she made that it was turning left was incorrect. Instead, Ms Taylor’s vehicle continued through the intersection.
The appellant said that Ms Taylor drove her vehicle into the intersection against a red light. The learned magistrate did not make a positive finding to this effect. However, he said it was a reasonable possibility that Ms Taylor entered the intersection “too late and too fast”.
The appellant was unrepresented at the hearing before the magistrate and on the hearing of the appeal. Her main complaint is that Ms Taylor came through the intersection on a red light. She argued she was not obliged to give way to Ms Taylor’s vehicle in the circumstances in which she found herself.
In Rucioch v Police[1] Doyle CJ described the elements of the offence of failing to give way as follows:
In the present case the elements of the offence of failing to give way (to express it briefly) involved proof that Mr Rucioch entered an intersection with traffic lights, that he turned right at that intersection, that at that time there were oncoming vehicles that were going straight ahead, and that he failed to give way to one of those vehicles. Failure to give way would require proof that the oncoming vehicles were sufficiently close to the intersection for Mr Rucioch’s conduct to amount to a failure to give way.
[1] [2004] SASC 127.
The failure to give way is not excused simply by reason of the fact that the oncoming driver has failed to obey the traffic lights. If the driver of a vehicle fails to obey the traffic lights in a situation such as this, the duty on the driver of a car wishing to turn right, to remain stationary until it is safe to proceed, remains. These circumstances are to be distinguished from a situation where the turning driver has already commenced to turn and is unable to avoid a collision which results from another vehicle entering the intersection in disobedience to a red light.
As I have said, the duty to remain stationary until it was safe to proceed remained. The learned magistrate found that, in making her turn while relying on the assumption that Ms Taylor’s vehicle was turning left, the appellant did not discharge her obligation to remain stationary until it was safe to proceed. His Honour said in his reasons for decision:
Ms Osman [the appellant] from her observations of Ms Taylor’s vehicle, assumed that Ms Taylor’s vehicle would not create a difficulty or danger for her, because Ms Taylor was turning left. That was more an assumption than anything else because Ms Osman concedes that there was no indication coming from Ms Taylor’s vehicle of such an intention. In making her turn while relying upon that assumption, in my view Ms Osman did not discharge her obligation to remain stationary until it was safe to proceed.
In my view Ms Osman had the obligation to approach her duty in the circumstances defensively, and in my view the evidence shows that she failed to do that. So on that basis, I find the charge proved.
This finding was open on the evidence. It appears that, for some reason, the appellant did not see Ms Taylor’s vehicle in the intersection until the time of the collision. The police officer who questioned the appellant after the incident gave the following account of part of their conversation:
I basically asked her how the accident occurred. She said “I was making a right turn from Payneham Road on to Glynburn Road. The lights changed to orange. A car in front of me turned. I followed it. I didn’t see the other car and we collided.”
I said “It is an offence to fail to give way to oncoming traffic when making a right turn at traffic lights. Was there any reason for not doing this?”
She said “I think I had trouble changing gears so I looked down momentarily. I just didn’t see the other car.”
I accept that the appellant may also have told the police officer that Ms Taylor’s vehicle entered the intersection against the red light. However, this does not detract from her statement that she did not see Ms Taylor’s car when she was making a right turn and that she may have been temporarily distracted. It was clearly unsafe for her to proceed and a proper lookout would have revealed that to her.
The facts as found by the magistrate and, particularly, the finding as to the manner of driving of Ms Taylor, mitigated the appellant’s breach and that is reflected in the penalty. However, there is no ground for interfering with the conviction.
The appeal is dismissed.