Palmer v "A" (A Child)

[1999] WASCA 290

PALMER -v- "A" (A CHILD) [1999] WASCA 290

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 290
Case No:	SJA:1057/1999	Heard:	24 NOVEMBER 1999
Coram:	McKECHNIE J	Delivered:	24/11/99
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal allowed Conviction for careless driving substituted
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Parties:	DAVID FRANCIS PALMER "A" (A CHILD)
Catchwords:	Driving offences Reckless, dangerous or careless No new principles
Legislation:	Road Traffic Act 1974 (WA), s 60
Case References:	Attree v Randall (1993) 19 MVR 95 Geneff v Townshend [1970] WAR 20 McBride v R (1965-1966) 115 CLR 44 Abalos v Australian Postal Commission (1990) 171 CLR 167 Becker v Roberts (1997) 27 MVR 193 Brunskill v Sovereign Marine & General Insurance Company Ltd (1985) 59 ALJR 842 Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 Devries v Australian National Railways Commission (1993) 177 CLR 472 Edmond v Taylor (1998) 27 MVR 158 Hemsley v McLean (1995) 22 MVR 33 Kaighin v R (1990) 1 WAR 390 Morton v Bevis (1993) 19 MVR 181 Price v Fletcher [1972] Tas SR 35 R (A Child) v Gwynne (1999) 28 MVR 441 Tate v Arnold (1993) 19 MVR 649

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : PALMER -v- "A" (A CHILD) [1999] WASCA 290 CORAM : McKECHNIE J HEARD : 24 NOVEMBER 1999 DELIVERED : 24 NOVEMBER 1999 FILE NO/S : SJA 1057 of 1999 BETWEEN : DAVID FRANCIS PALMER

Appellant

AND

"A" (A CHILD)
Respondent

Catchwords:

Driving offences - Reckless, dangerous or careless - No new principles

Legislation:

Road Traffic Act 1974 (WA), s 60

Result:

Appeal allowed

Conviction for careless driving substituted


(Page 2)

Representation:

Counsel:

Appellant : Ms K E McDonald
Respondent : Mr R S Bell

Solicitors:

Appellant : State Crown Solicitor
Respondent : Youth Legal Service

Case(s) referred to in judgment(s):

Attree v Randall (1993) 19 MVR 95
Geneff v Townshend [1970] WAR 20
McBride v R (1965-1966) 115 CLR 44

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Becker v Roberts (1997) 27 MVR 193
Brunskill v Sovereign Marine & General Insurance Company Ltd (1985) 59 ALJR 842
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192
Devries v Australian National Railways Commission (1993) 177 CLR 472
Edmond v Taylor (1998) 27 MVR 158
Hemsley v McLean (1995) 22 MVR 33
Kaighin v R (1990) 1 WAR 390
Morton v Bevis (1993) 19 MVR 181
Price v Fletcher [1972] Tas SR 35
R (A Child) v Gwynne (1999) 28 MVR 441
Tate v Arnold (1993) 19 MVR 649

(Page 3)

McKECHNIE J:

An unusual way to carry furniture

1 On 1 November 1998 the respondent, then aged 15, went with a friend to pick up a lounge chair that the friend had seen and which had been thrown in a bulk rubbish pile. They wished to carry the lounge about 125 metres. They had a car. The friend had been drinking so the two of them adopted the expedient of putting the lounge on the bonnet of the car. The friend hopped on the bonnet and held the lounge in place.

2 The respondent, who does not have a driver's licence, then drove very slowly about 5 to 10 kmh with the lounge. Unfortunately for him, police officers observed this unusual conveyance. They noticed four children waiting on the verge where the lounge was headed.

The driver is charged

3 The respondent was charged with reckless driving on 17 March 1999 and stood trial. He represented himself. The learned Magistrate held:

"… to actually prove wilful driving one has to show a significant or serious departure from normal and prudent practices of a reasonable driver. … Here the defendant had control. He was driving at 5 to 10 kilometres an hour, albeit that he adopted a practice which is not … [indistinct] … expect one should be commonly used. I do find that notwithstanding the person being on the bonnet, or -- he had sufficient control of the vehicle and therefore the manner - that in all the circumstances I don't consider that to be a driving which is dangerous to the public or to any person and I find him not guilty."

The appeal

4 The prosecution appeals on the following grounds:

"(a) The learned Magistrate erred in law and in fact in failing to find the complaint of reckless driving against the respondent proven

(b) In the alternative, the learned Magistrate erred in law and fact in failing to consider whether

(Page 4)

(i) the Respondent's driving was dangerous, contrary to section 61(1) of the Road Traffic Act 1974, or;

(ii) the Respondent drove without due care and attention, contrary to section 62 of the Road Traffic Act 1974.

5 In the portions of his reasons to which I have referred, the learned Magistrate elides from reckless driving to dangerous driving. At the start he sets out the test for reckless driving but concludes that there is insufficient evidence of dangerous driving and in consequence does not actually deal with the question of wilfulness. It is therefore unclear as to whether he paused to consider separately dangerous driving as an alternative. He does not mention, and therefore does not appear to have considered, the further alternative charge of careless driving which is an alternative to reckless driving, as is dangerous driving, under the Road Traffic Act1974 s 60(2).

6 I propose therefore to review the evidence and reach a conclusion as to whether the driving can be categorised as reckless, dangerous or careless, because in this case the facts are in brief compass, not in issue, and no real question of credibility arises.

7 The cases which discuss these different concepts are usefully gathered together by Murray J in Attree v Randall (1993) 19 MVR 95. It is not therefore necessary for me to do likewise.

Reckless driving

8 Reckless driving is wilfully driving in a manner which is inherently dangerous or, alternatively, dangerous to any person or the public in the circumstances. In the present case the speed was very slow, the distance short and the street quiet. Although there were children in the vicinity, they were at the house which was the intended terminus. In my judgment the particular facts do not have the quality of deliberation as to danger which can satisfy me beyond reasonable doubt that the driving could be categorised as reckless.

Dangerous driving

9 There are many cases which discuss the concept of dangerous driving. It is sufficient only to refer to McBride v R (1965-1966) 115 CLR 44 per Barwick CJ at page 50:

(Page 5)

"The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others."

10 I am not satisfied beyond reasonable doubt that this course of driving was, in reality, potentially dangerous. Any course of driving is in a sense potentially dangerous. In the present case, although there was some potential for danger, the real risk, the reality, was very slight due to the slow speed and the other circumstances.

Careless driving

11 The term in the marginal note is a misnomer. The section does not use the adjective "careless"; rather, any person who drives without due care and attention is guilty of the offence. A lack of due care and attention does not precisely equate with "careless".

12 On one view of the evidence, I suppose it could be said colloquially that the defendant was being very careful in that he was driving slowly to avoid any danger. However, I am satisfied beyond reasonable doubt that in the course of this driving the defendant was not acting with due care or attention. His vision was partially obscured, he was inexperienced in the handling of a motor vehicle, a matter I infer from his age and lack of licence. Driving a car with a lounge on the bonnet and a person who had been drinking perched on the bonnet holding onto it more than satisfies the epithet "careless" and in any event amounts to driving without due care and attention in the circumstances.

13 In reaching this conclusion I adopt and apply the concept of careless driving as set out by Hale J in Geneff v Townshend [1970] WAR 20 at 21. In my view this appeal should be allowed, the decision of the learned Magistrate dismissing the charge set aside, and in lieu a judgment of conviction for careless driving should be entered.