Patricia Ann Bliss v R No. SCCRM 93/260 Judgment No. 4228 Number of Pages 9 Criminal Law and Procedure

[1993] SASC 4228

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL BOLLEN(1), DUGGAN(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - Causing bodily harm by dangerous driving - sl9a(3), Criminal Law Consolidation Act - trial by Judge alone - appellant entered intersection of two country roads at night at slow speed but failed to yield right of way - victim entered intersection at fast rate of speed but within speed limit - not established that capacity to drive affected by alcohol - victim seriously injured in consequence of collision between the two vehicles - appellant found guilty - appeal against conviction - evidence did not establish more than mere negligence which is an ordinary risk of the road - driving of appellant erroneously characterised as in a manner dangerous - appeal allowed - verdict set aside and verdict of driving without due care substituted. R v Duncan 5/5/53 (printed as a note to the report of R v Mayne
(1975) 11 SASR 583 at 592-94, applied.

HRNG ADELAIDE, 23 September 1993 #DATE 5:11:1993
Counsel for appellant:     Mr W R Retalic
Solicitors for appellant:    Barnfield Somerville Verlato
Counsel for respondent:     Mr P J L Rofe QC with
   Mr R N Jensen
Solicitors for respondent: Director of Public Prosecutions

ORDER
Appeal allowed.

JUDGE1 BOLLEN J I agree with the order proposed by Mullighan J and with his reasons. 2. The earnest submissions of the Director of Public Prosecutions in support of the conviction leads me to add some remarks. 3. The Director submitted that the conduct of the appellant in entering the intersection when traffic to which she was required to yield was approaching "had to be" dangerous. As a matter of words that may be correct. But the determination of this case is not a matter of words. With all respect I think that that sweeping submission is wrong. More than entering the intersection when traffic with the "right of way" is approaching so that a collision occurs is needed to prove "dangerous driving". "Dangerous driving", that is, as intended by the Criminal Law Consolidation Act and by the Road Traffic Act. 4. The appellant was charged with "causing bodily harm by dangerous driving". That was laid "under" s19a(3) of the Criminal Law Consolidation Act. Section 19b(3) of the Criminal Law Consolidation Act is:-
    "If at a trial of a person for an offence to which this
    subsection applies (being an offence mentioned in subsection
    (2)(a) or (b) the jury is not satisfied that the accused is
    guilty of the offence charged but is satisfied that the accused
    is guilty of a less serious offence to which this subsection
    applies, the jury may bring in a verdict that the accused is
    guilty of that less serious offence." 5. The subsection applies to a judge sitting alone at the election of the accused. 6. It will be seen, therefore, that if a jury is not satisfied that the accused is guilty of "causing bodily injury by dangerous driving" but is satisfied that the accused is guilty of a less serious offence to which this subsection applies, then the jury (or judge) may bring in a verdict that the accused is guilty of the "less serious offence". The two possible less serious offences as provided in s19b(2) are "dangerous driving" (s46 of the Road Traffic Act) or "careless driving" (s45 of the Road Traffic Act). 7. The power given to a jury (or to a judge sitting alone) to return a verdict of "guilty of careless driving" is in itself sufficient to defeat the sweeping submission of the Director. That power applied to this sort of case means that Parliament intends some right of way cases where injury is caused to be classified as "driving without due care". If Parliament had intended that entry into an intersection when required to stand and wait for approaching traffic should always amount to dangerous driving (and if there was injury to causing bodily harm by dangerous driving) it would not have given power to return a verdict of mere "careless driving". 8. What is the difference between "dangerous" and "careless" driving? Napier CJ told us that in 1953 in his address and directions to the jury in R v Duncan 8th May 1953. This direction is printed as a note to the report of R v Mayne (1975) 11 SASR 583 at 592-594. The relevant passage appears in 'MOTOR VEHICLE LAW' (South Australia) at pages 210-211 paragraph 1175. It is:-
    "Gentlemen, for the purpose of putting the matter before,
    you and explaining what is implied by these various expressions,
    I think that I should begin by pointing out - what is,
    unfortunately, only too obvious to everyone in these days -
    namely, that the occupation of driving a motor vehicle upon the
    public highway is one that calls for a very high degree of care
    and concentration and more particularly so when the vehicle is
    being driven, as it is admitted that this vehicle was being
    driven - at a speed of 35 or 40 miles per hour. As it has been
    put to you, in the course of the addresses, a vehicle travelling
    at that speed covers something between 17 and 20 yards in a
    second, which is - more or less - accepted as the actual period
    of reaction, that is to say, as the time that it takes an
    ordinary driver to perceive that there is something in the way
    and to shift his foot from the accelerator to the brake. And so
    gentlemen, it must be obvious that unless the driver of a
    vehicle, moving at this speed, is able to give his undivided
    attention to his driving, and to exercise a considerable degree
    of care and skill, he is an absolute menace to the public
    safety. At this speed, a motor vehicle is, I suppose, as
    dangerous as a rifle fired along the public highway. It is,
    perhaps, more dangerous. A rifle bullet is a little thing and
    the chance of hitting anybody with it may be relatively slight
    as compared with the chance of running down a pedestrian who may
    happen to be crossing the road, or colliding with a vehicle
    coming in the opposite direction. Gentlemen, it is our duty,
    when we are doing an act fraught with danger to other people, to
    exercise the degree of care and circumspection commensurate with
    the danger of the situation we are creating. Realising that,
    our statute law provides for something like an ascending scale
    of offences. The least of these is the offence of 'driving
    without due care and attention'. That covers any material
    departure from the high standard of care which is due by anybody
    who drives a motor vehicle. It is the standard which gives a
    civil right of action for damages; but, over and above that,
    there is the more serious offence of driving in the manner
    alleged in the information in this case, namely, 'driving in a
    manner dangerous to the public'. I think that the distinction
    between these two offences is best explained by pointing out to
    you that all - or at any rate most - of us are liable at times
    to do things that we ought not to do, and to leave undone things
    that we ought to have done. When we use the public highway, we
    must expect to meet people like ourselves - people who are only
    human beings - with the human tendency to depart, at times, from
    the full standard of care and skill. That you may regard as
    negligence - 'driving without due care and attention' - but,
    nevertheless as an ordinary 'risk of the road'. If it is a case
    of 'You today, and me tomorrow', we have to accept the risk as
    one of the ordinary incidents of modern life. If we live in an
    age of aeroplanes and fast-moving traffic, we have to take
    things as they are - the thick with the thin, and you the
    pedestrian today and tomorrow the driver, are to say where the
    line should be drawn between a mere lapse from due care and
    attention and conduct which is plainly blameworthy.
     If it is the sort of thing that any of us might be liable to
    do - although we might be sorry for it afterwards - you may
    regard it as driving without due care and attention, but,
    nevertheless, as an ordinary - and in one sense a necessary -
    risk of any road on which vehicles are driven by ordinary people
    like ourselves - perhaps who mean well, but sometimes make
    mistakes. But over and above that, it must be a matter of
    common knowledge that there are some people who - at times -
    impose on other users of the road a risk which is by no means a
    fair or necessary risk of the road. They drive in a manner
    which imposes upon other users of the road a risk which any
    reasonable person, in the situation of the driver, ought to
    recognise as a real danger to the public. That, gentlemen, is
    what I think this information means, when it charges the accused
    with driving in a manner dangerous to the public. It refers to
    the sort of risk which is in no sense an ordinary or necessary
    risk of the road, and to a manner of driving which is treated as
    a fairly serious crime." 9. I agree with the reasons of Mullighan J for holding that the alcohol played no part in the causing of the collision. 10. Day in and day out motorists are convicted in magistrates' courts of careless driving or of the statutory offence of failing to give way for conduct identical to that of the appellant here. The appellant approached this intersection at a slow speed. Visibility was restricted there. She should have been the more vigilant. She should have seen the lights of the stand on vehicle. She did not. She carried on. She was at fault. Her look out was poor. But that conduct, applying the directions of Napier CJ, was no more than "careless driving". 11. I would allow the appeal. I would set aside the conviction and penalties imposed by the trial Judge. I would substitute a conviction for driving without due care. I think that this Court should impose penalty. I would hear counsel.

JUDGE2 DUGGAN J I agree with the view expressed by Bollen and Mullighan JJ that the evidence does not support the verdict of causing grievous bodily harm by dangerous driving. I also agree that a verdict of guilty of driving without due care should be substituted. I would make the orders proposed by Mullighan J and in my view it would be appropriate for this court to sentence the appellant on the lesser offence after hearing submissions from counsel.

JUDGE3 MULLIGHAN J The appellant was charged with causing bodily harm by dangerous driving contrary to s.19a(3) of the Criminal Law Consolidation Act 1935. She came to trial in the District Court at the Mt. Gambier Circuit on 25th June 1993. She pleaded not guilty and elected to be tried by Judge alone. After a trial she was found guilty and sentenced to imprisonment for two years, which sentence was suspended upon her entering into a bond. She appeals against the conviction. There is no appeal against the sentence. 2. The facts fall into a narrow compass. There was a road accident just after dark on 19th May 1992 at the intersection of Whitehead Road and Punt Road at O.B. Flat near Mt. Gambier. The appellant was driving a Holden Gemini motor vehicle in a easterly direction along Whitehead Road. As she approached the intersection she was travelling at a relatively slow speed in second gear. The two roads intersected at right angles and there was a give way sign facing the appellant. A Mrs Walsh was driving a Holden Commodore motor vehicle in a southerly direction along Punt Road. There were no other vehicles on either road. The appellant failed to yield right of way to Mrs Walsh and the two vehicles collided. Mrs Walsh sustained serious bodily injury. 3. The learned Trial Judge found that to the north of the intersection Punt Road passes through a cutting and then slopes gently down to the intersection which is about 80 metres from the end of the cutting. Mrs Walsh drove through this cutting shortly before the collision. To the west of the intersection Whitehead Road also passes through a cutting about 200 metres from the intersection and then slopes down quite steeply to the intersection. The nearby terrain and vegetation is such that the field of vision of a driver travelling south along Punt Road permits him or her to first see Whitehead Road when about 80 metres north of the intersection and then only that part of Whitehead Road at about 60 metres east of the intersection. The field of vision of a driver travelling in an easterly direction along Whitehead Road is also restricted in respect of traffic travelling south along Punt Road. The speed limit on both roads was 110 kilometres per hour. There was no artificial light in the vicinity. The learned Trial Judge also accepted that there had been previous accidents at the intersection and that Constable Davies, an experienced police officer, had heard that it was regarded as a dangerous intersection. 4. Mr Pannenburg was a passenger in Mrs Walsh's vehicle. The learned Trial Judge accepted their evidence that in the 80 metres or so before the collision that vehicle was travelling at about 100 kilometres per hour and, at all events, within the speed limit. He found that it was likely that they were engaged in conversation and neither of them was paying a great deal of attention to the appellant's vehicle approaching the intersection along Whitehead Road. He also accepted that the headlights of Mrs Walsh's vehicle were operating at the time but he could not find whether they were on high beam or low beam. Mrs Walsh's evidence was that she usually drove in country locations at night on high beam and dipped her lights to low beam upon seeing another vehicle, but she was unable to say if she had done so prior to the collision. 5. The appellant did not give evidence but the learned Trial Judge had regard to statements which she had made to Constable Davies after the collision. She said that she was aged 58 years, that she had not been drinking, she was down to second gear, the other driver was going "so fast", and she did not see that vehicle. Constable Davies did smell liquor on her breath but did not observe any demeanour on her part which was consistent with having been caused by intoxication by alcohol. 6. The learned Trial Judge found that neither the appellant nor Mrs Walsh saw the vehicle of the other until only a split second before the impact. 7. After the accident the appellant was obliged to undergo a breath test. The learned Trial Judge found that she was intentionally and deliberately unco-operative with the police officers in not giving sufficient samples of her breath to enable proper analysis by the breath analysing instrument. However, the learned Trial Judge did not interpret this conduct as being due to a consciousness of guilt on her part but accepted that she was simply fearful of what the result might have been had she fully co-operated. He accepted the evidence of Mr Smith, an analytical chemist, that any error in the breath analysis due to insufficient samples of breath would have resulted in an indication of a lesser blood alcohol content than would otherwise be the case. The breath analysis tests were conducted at 7.00 pm and revealed that the appellant had a blood alcohol level of .123 grams of alcohol in 100 millilitres of blood. He acknowledged that there was no expert evidence as to what her blood alcohol level would have been at the time of the accident, a little over an hour earlier, but he accepted the evidence of Mr Smith that the general rate of elimination of alcohol from the blood is between .01 and .02 grams of alcohol in 100 millilitres of blood per hour. Also he accepted his opinion that because the appellant had given insufficient samples of her breath when undertaking the tests, the reading may have represented only 80 per cent of her true blood alcohol level at the time. His Honour undertook his own calculation and concluded that the blood alcohol level of the appellant at the time of the accident could not have been less than .1 grams of alcohol in 100 millilitres of blood. 8. A statement of Dr. Manock, an expert forensic pathologist, was read at the trial in lieu of his giving evidence. The learned Trial Judge accepted his opinion that with a blood alcohol level of .1 grams of alcohol in 100 millilitres of blood a person's reflexes are about 25% slower. He went on to say:-
    "I accept Mr Retalic's submission that the blood alcohol
    finding in itself would not prove that the accused had been
    driving in a manner dangerous. However, this evidence of the
    blood alcohol reading and of Dr. Manock's conclusions drawn
    from it assists the court in finding it was more likely that the
    accused would have seen Walsh's on-coming car, but due to the
    effect of alcohol she was unable to take effective evasive
    action in time to avoid the collision." 9. There are a number of grounds of appeal in relation to the evidence of the blood alcohol level of the appellant and the significance given to it by the learned Trial Judge. In my view, it is unnecessary to discuss any of these grounds of appeal in detail. The evidence of the result of the breath analysis was admissible. There is no suggestion that it was illegally or unlawfully obtained and there are no circumstances which would justify its exclusion in the exercise of discretion. Mr Retalic faintly argued to the contrary but because of my view as to the fate of this appeal, it is unnecessary to discuss those arguments and to say any more than that they are untenable. 10. There are three reasons why, in effect, alcohol should have been dismissed from the case and I think it is likely that the learned Trial Judge did not place any reliance on the alcohol evidence as he went on to find that the appellant did not see Mrs Walsh's vehicle "until very shortly before the collision and not in sufficient time to take any, or at least any effective, evasive action to avoid the collision". So, it would appear that he did not find that any effect of alcohol upon reaction time played any part in the course of the collision. 11. The first reason is that the learned Trial Judge did not make a finding beyond reasonable doubt that, but for the effects of the alcohol she had consumed, she could have avoided the collision. He was only prepared to make that finding on the balance of probability. It is a matter of such importance in the circumstances that if it was to be a basis for a finding of guilt, it had to be proved beyond reasonable doubt. The second reason is that Dr. Manock prefaced his opinion as follows:-
    "Individuals differ in their reaction to alcohol and the,
    same individual may show a different response on different
    occasions. It is, therefore, simply not possible to definitely
    state what effects a certain BAC will have on a certain person.
    However, certain generalisations have been found in various
    studies." 12. There was no evidence to establish that the "generalisations" which the learned Trial Judge applied to the appellant were in fact applicable. Such evidence is customarily given by suitably qualified experts, such as Dr. Manock, but it was not adduced at this trial. Consequently, it was unsafe for the learned Trial Judge to accept the appellant's "reflexes would have been about 25 per cent slower than normal". Lastly, there was no evidential basis for the conclusion that the blood alcohol level of the appellant, at the time of the accident, was as found by the learned Trial Judge. For such a conclusion to be justified, the history of the consumption of alcohol by the appellant on the subject evening would have to be proved along with other essential facts which would permit a suitably qualified expert to express an opinion as to the rate of absorption of alcohol into the appellant's blood as well as the rate of its elimination. There was no such evidence and so the possibility that her blood alcohol level was rising sharply after the accident from a low level at the time of driving could not be excluded. For these reasons it was not proved that alcohol played any part in the cause of the accident. 13. The learned Trial Judge made the following additional findings:-

     1. because of the cutting on Punt Road, the terrain and
    the vegetation, the appellant could not have seen the headlights
    of Mrs Walsh's vehicle until she, the appellant, was about 60
    metres from the intersection;
     2. the appellant, because of her admitted familiarity with
    the intersection and her common sense, must have been aware that
    she was approaching a dangerous intersection where she would
    have limited visibility of traffic coming from her left at
    lawful speeds of up to 110 kilometres per hour;
     3. she was obliged to give way to Mrs Walsh's vehicle but did
    not, or make any attempt to, do so;
     4. because she approached and commenced to cross the
    intersection at a relatively slow speed in second gear, she had
    more than sufficient time to see the headlights of Mrs Walsh's
    vehicle and to stop or otherwise give way to it;
     5. she did not see Mrs Walsh's vehicle until very shortly
    before the collision and not in time to take any, or at least
    any effective, evasive action to avoid the collision. 14. Mr Retalic contested the finding of the learned Trial Judge as to the speed of Mrs Walsh's vehicle. He contended that the circumstances of the accident, including the appellant's apparent failure to see the vehicle until it was too late to avoid the collision, are consistent with that vehicle travelling at a speed considerably greater than 100 kilometres per hour. True it is that the learned Trial Judge found that much of the evidence of Mrs Walsh and Mr Pannenburg as to what occurred during the few seconds before the collision was reconstruction on their part but he did find that both of them were honest witnesses and he accepted the evidence of both of them that the vehicle was travelling at 100 kilometres per hour. Mrs Walsh said that she always looked at her speedometer when travelling to make sure that she does not exceed the speed limit. There is no reason to disturb the finding that the speed of Mrs Walsh's vehicle was about 100 kph. However, even at that speed the time taken by that vehicle to travel from where it emerged from the cutting to the point of impact could only have been a few seconds. The evidence does not permit a finding that the appellant could have seen the headlights of Mrs Walsh's vehicle for any appreciable time before it emerged from the cutting. So, it may be said that inattentiveness by the appellant for a very short period of time as she was nearing the intersection was sufficient to cause the accident. 15. The Crown had to prove all of the elements of the charge beyond reasonable doubt and there are three: that the appellant was the driver of the Gemini motor vehicle, that she drove it in a manner dangerous to the public and that as a result of such driving Mrs Walsh suffered grievous bodily harm. The appellant formally admitted at the trial the first matter and also that Mrs Walsh suffered grievous bodily harm in consequence of the accident. The learned Trial Judge found that the appellant's driving was at least a substantial cause of the grievous bodily harm suffered by Mrs Walsh and there is no complaint about that finding. The only issue is whether her manner of driving may properly be described as dangerous to the public. The learned Trial Judge adopted the following as the appropriate test:- "The test is objective and is based on what the ordinary person in the situation of the driver would consider as being sufficiently dangerous." and went on to find:-
    "I am satisfied that the accused's manner of driving on ,
    the facts found earlier was so dangerous and involved such a
    risk of injury to other road users that it is to be categorised
    as driving in a manner dangerous rather than as merely driving
    without due care and attention. Because of the potential lawful
    speed of users of Punt Road and the restricted field of
    visibility, a driver on Whitehead Road was required to exercise
    extreme care to fulfil the obligation to give way to traffic on
    Punt Road, and particularly in times of darkness. The
    consequences of a driver entering the intersection from
    Whitehead Road into the path of vehicles travelling at up to 110
    kilometres per hour on Punt Road were potentially catastrophic.
    If a notional bystander had been standing at the intersection at
    the time observing both vehicles as they approached the
    intersection they would have had their heart in their mouth at
    the degree of danger created by the actions of the accused
    bearing in mind that it was her legal obligation to give way.
    My conclusion does not turn on the speed of the accused. If she
    had approached and entered the intersection slowly she should
    have had plenty of time to have seen and have avoided the
    on-coming car. If she had approached and entered the
    intersection so quickly that she did not give herself sufficient
    opportunity to see and give way to the on-coming car, then her
speed was clearly very dangerous in itself." 16. In view of the earlier findings of the learned Trial Judge as to the speed of the appellant's vehicle, it is not clear whether, in this passage of the reasons for verdict, he was qualifying in some way the earlier finding that the appellant approached and commenced to cross the intersection "at a relatively slow speed in second gear" and that she had more than sufficient time to see the headlights of Mrs Walsh's vehicle and to stop or otherwise give way to it. I think the learned Trial Judge must have accepted that the appellant's vehicle was travelling slowly. Although he uses the expression "relatively slow speed", his finding that the appellant had "more than sufficient time to see the headlights of (Mrs.) Walsh's on-coming car and to stop or otherwise give way to it" in the circumstances of the speed of that vehicle and the short distance, some 80 metres or so which it had to travel after leaving the cutting and the few seconds or so required to travel that distance, he must have accepted that the appellant approached and entered the intersection at a slow speed. 17. In view of the findings made by the learned Trial Judge as to the manner of driving of the appellant and having excluded the effect of alcohol upon her from consideration, I do not think her manner of driving could be categorised as dangerous to the public. The test applied by the learned Trial Judge was sound as far as it went. It was in accordance with the observations of King CJ in Kroon v. The Queen (1991) 55 SASR 476 at pp 477-478:-
    "It is well established that the question whether a
    vehicle, is driven in a manner dangerous to the public for the
    purpose of the offences created by s.19a of the Criminal Law
    Consolidation Act 1935 must be answered by reference to an
    objective standard and irrespective of whether the accused
    intended to drive dangerously or appreciated that he was doing
so: see R v. Coventry (1938) 59 CLR 633 at 637-638, 639;
McBride v. The Queen (1966) 115 CLR 44 at 49-50, 55; Giorgianni
v. The Queen (1985) 156 CLR 473 at 479, 490, 499; Cornish v.
The Queen (1988) 48 SASR 520. The character of the driving is
    tested not by reference to whether the danger to the public
    involved in the driving was appreciated by the accused but to
    whether he ought to have appreciated the danger; or, to put it
    another way, whether a reasonable person in the situation of the
    accused would have appreciated the danger: see R v. Mayne
(1975) 11 SASR 583, per Bray CJ at 585; R v. Duncan (1953) 11
SASR 592 at 594." 18. However, the law has long recognised the difference between mere inadvertence or negligence which is an ordinary risk of using the road and conduct which is plainly blameworthy, i.e. driving in a manner dangerous to the public: The Queen v. Duncan (1953) 11 SASR 592 per Napier CJ at p 593; The Queen v. Mayne (1975) 11 SASR 583 per Bray CJ at p 585 and McBride v. The Queen (1966) 115 CLR 44 per Barwick CJ at pp 50-51. As Bray CJ pointed out in The Queen v. Mayne (supra) at p 585:- "By empowering the jury to acquit of causing death by dangerous driving and to convict of driving without due care or attention, it (Parliament) must have contemplated that not all departures from due care and attention, even if they cause death, are necessarily to be classified as dangerous within the meaning of s.14." 19. The existing legislation, ss.19a and 19b are in similar terms to the former ss.14 and 14a of the Criminal Law Consolidation Act. Of course, the quality of being dangerous to the public in the manner of driving does not depend upon the resultant damage or injury: McBride v. The Queen (supra) per Barwick CJ at p 50. 20. Standing back and considering the findings of the learned Trial Judge, I do not think it is appropriate to characterise the driving of the appellant as in a manner dangerous to the public. She was not driving at an excessive speed, or erratically. She was driving slowly and, up until entering the intersection, apparently entirely within the rules of the road and safely. The only complaint which may be levelled at her is that her lookout was defective, a common complaint about all drivers at some stage of their lives. Whilst the manner of driving of Mrs Walsh is of no assistance in determining how to categorise the manner of driving of the appellant, her failure to see the appellant's vehicle until the moment before the collision illustrates that defective lookout is, regrettably, common among drivers of motor vehicles. 21. In my view, all that the evidence was capable of establishing is that in entering the intersection when she did the appellant was guilty of negligence or inadvertence such as to constitute driving without due care. I would allow the appeal and quash the verdict of guilty of causing bodily harm by dangerous driving and the sentence imposed by the learned Trial Judge. As the issue in this case is the correct categorization of the manner of driving of the appellant, a re-trial is not appropriate. I would substitute a verdict of guilty of driving without due care, the offence constituted by s.45 of the Road Traffic Act 1961 and impose penalty after hearing counsel.