Peacock v Jones
[2010] WASC 358
•3 DECEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PEACOCK -v- JONES [2010] WASC 358
CORAM: BLAXELL J
HEARD: 8 NOVEMBER 2010
DELIVERED : 3 DECEMBER 2010
FILE NO/S: SJA 1086 of 2010
BETWEEN: CRAIG THOMAS PEACOCK
Appellant
AND
MICHAEL JOHN JONES
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE B C GLUESTEIN
File No :AR 6623 of 2008
Catchwords:
Criminal law - Appeal from conviction for dangerous driving causing grievous bodily harm - Intersection collision at dusk between appellant's vehicle and motorcycle which had right of way - Appellant looked for oncoming traffic but did not see motorcycle - No evidence to specifically explain why appellant did not see motorcycle - Whether the only reasonable inference in all of the circumstances was that the appellant drove dangerously
Legislation:
Road Traffic Act 1974 (WA), s 59(1)(b)
Result:
Appeal allowed
Order for retrial
Category: B
Representation:
Counsel:
Appellant: Mr R W Richardson
Respondent: Mr A D Sullivan
Solicitors:
Appellant: Christian Miocevich
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
King v Coventry (1938) 59 CLR 633
McBride v The Queen (1965) 115 CLR 44
McPherson v Lucas [2008] WASCA 56
Moore v Moore [2001] WASCA 126
BLAXELL J: The appellant (Mr Peacock) has been granted leave to appeal on three grounds from his conviction on 25 June 2010 for an offence of dangerous driving causing grievous bodily harm.
The conviction arose from a collision on 10 May 2007 at the junction of Forrest Road and Tonkin Highway, Forrestdale between a trailer attached to a vehicle driven by Mr Peacock and a motorcycle being ridden by Jeffrey Oorschot. The motorcycle was travelling along Tonkin Highway and it either clipped or narrowly missed the end of the trailer after Mr Peacock entered the junction from Forrest Road through a give‑way sign. As a result, Mr Oorschot lost control of the motorcycle and suffered grievous bodily harm.
Mr Peacock pleaded not guilty to the charge but was convicted following a trial before Magistrate Gluestein in the Armadale Magistrates Court. The Magistrate accepted Mr Peacock's evidence that he had looked for approaching traffic before entering the intersection but did not see the motorcycle. His Honour found that it was unreasonable for Mr Peacock not to have seen the motorcycle, and that he had driven dangerously by entering the intersection into its path.
Mr Peacock appeals from this decision on the following three grounds:
1.The learned Magistrate erred in finding the appellant guilty of Dangerous Driving on the basis that it was unreasonable for the appellant to have missed seeing Jeffrey David Oorschot on his motor bike when it was open to the Magistrate to conclude that the prosecution had failed to prove beyond reasonable doubt the possible inference that the appellant had been driving attentively but had reasonably failed to see Mr Oorschot on his motorbike.
2.The learned Magistrate erred in law in concluding that the fact that the appellant looked and did not see was irrelevant to the issue of whether the manner of driving was objectively dangerous.
3.The learned Magistrate erred in law in convicting the appellant in circumstances where the learned Magistrate made no finding rejecting the evidence of the appellant.
The evidence before the Magistrate
Mr Peacock is a self‑employed carpenter, and at the material time carried his tools of trade and equipment in a Holden utility with an attached trailer. On 10 May 2007 he was working with another carpenter, Mr Adam Myers at a site in Forrestdale.
The two men ceased work at approximately 5.30 pm and after loading their respective vehicles they left the site in convoy together. Their route took them along Forrest Road, and when they reached the junction of that road with Tonkin Highway Mr Peacock's vehicle was in front and Mr Myer's vehicle was immediately behind. It was the intention of both men to continue their journey by turning right into Tonkin Highway.
Tonkin Highway comprised two carriageways each of two lanes (heading north or south) separated by a fairly wide median strip. All vehicles in Forrest Road approaching Tonkin Highway did so from the east, and there was a gap in the median strip which enabled them to turn right into the north bound carriageway. A give‑way sign controlled their entry into Tonkin Highway.
It was Mr Peacock's evidence that he slowed down as he approached the give‑way sign and that he believed he momentarily stopped. (In this regard, the prosecuting counsel in his closing address did not dispute that Mr Peacock 'slowly and cautiously entered that intersection' - AB 189). According to Mr Peacock he looked out for traffic to the right, then to the left, and then to the right a second time as he crossed the south bound carriageway towards the gap in the median strip. His evidence was to the effect that he did this in a careful and methodical fashion in accordance with training he had received as a member of the army reserve (AB 167).
Photographs of the junction taken in daylight (exhibit 10) showed that there were no physical obstructions to Mr Peacock's view to the right. When viewed in that direction Tonkin Highway had a sweeping bend to the left but without any substantial vegetation in the median strip which would have prevented him seeing approaching vehicles. However, the evidence also established that at the material time, the sun had set, it was 'half light', there was dark vegetation in the background on the eastern side of Tonkin Highway, and the street lighting in the vicinity of the junction did not extend beyond the bend.
It was Mr Peacock's evidence that when he first looked to the right he saw a vehicle approaching from around the bend which was about 150 to 200 metres away. It had its headlights on but there was sufficient light for him to see from its shape that it was a four wheel drive vehicle. When he looked to the right the second time (as he was crossing the carriageway), that same vehicle was approximately 100 metres away. He did not see any other vehicle.
As Mr Peacock drove into the gap in the median strip he heard a screech of tyres and felt a 'nudge' to his trailer which caused him to look over his left shoulder. He then, for the first time, saw the motorcycle as well as Mr Oorschot lying in the middle of the road. The driver of the four wheel drive vehicle (a Toyota Hilux) then stopped and turned on his hazard lights. However, after the drivers of a number of other vehicles had stopped to assist at the scene, the Toyota Hilux drove off and was not seen again.
The only other witness to the incident was Mr Myers. According to him, at that time he was stationary at the give‑way sign and also looking to the right. He could see the headlights of a vehicle in the distance but was not aware of the approaching motorcycle until he heard a screeching noise and saw it 'come skidding down the road'.
Mr Peacock and Mr Myers both testified that they did not see any headlight of the motorcycle. However, the evidence of an expert vehicle examiner and of another person who attended the scene soon after the incident established that the headlight had been switched on and was operating properly.
There was also evidence from an expert crash investigator that as a result of measurements taken of the skid marks at the scene, it could be concluded that the motorcycle had been travelling at a speed of no more than 110 km per hour (in a 100 km per hour zone). There had been no obstruction to the visibility of the approaching motorcycle for at least 250 metres, and it should have been visible to Mr Peacock for at least nine seconds. Furthermore, the motorcycle had braked when it was at a distance of between 77 and 112 metres from Mr Peacock's trailer.
Unfortunately, Mr Oorschot was unable to testify at the hearing because he had lost his memory of the incident as a result of his injuries. However, it is relevant to note the evidence that he was wearing dark clothing and a black helmet at the material time, and that his motorcycle was predominantly black in colour.
There was evidence from Mr Peacock's video record of interview immediately following the incident that he was not affected by alcohol, was not tired, and was not in any hurry at the material time. Mr Peacock also had a flawless driving record.
The Magistrate's findings
The Magistrate made no findings as to the credibility of witnesses or of Mr Peacock in particular. Nevertheless, his Honour's reasons for decision seem to have assumed the correctness Mr Peacock's account of the relevant events. In this regard, his Honour clearly accepted that Mr Peacock had looked to the right for approaching traffic, and that for some unknown reason he had not seen the motorcycle.
The prosecution case against Mr Peacock was that he had failed to keep a proper lookout, and during closing submissions that proposition was expressed in the following terms:
Certainly we don't dispute that he slowly and cautiously entered that intersection. What we say is that he didn't look to his right in a proper fashion either before doing so or during that manoeuvre (AB 189).
The Magistrate did not specifically find that Mr Peacock failed to look to his right in a proper fashion. However, his Honour did find that the motorcycle headlight was on, that there was visibility for 250 metres, and that the motorcycle had been travelling at a speed as calculated by the expert crash investigator. The critical finding that Mr Peacock had driven dangerously was made for the following reasons:
The case for the prosecution is overwhelming, and I am satisfied beyond reasonable doubt that Mr Peacock drove dangerously that evening on May 2007. Viewed objectively, there is no doubt that the manner of driving of Mr Peacock was dangerous when he left Forrest Road and crossed on to Tonkin Highway. Visibility was clear to some 250 metres, and he drove into the path of Mr Oorschot's bike, causing actual danger. The fact that he looked and did not apparently see the bike does not lessen the conclusion that the manner of driving was objectively dangerous (ts 5).
It is important to note that his Honour also rejected the possibility of any defence under s 24 of the Criminal Code, and that he did so for the following reasons:
Granted, the appellant looked, and in all likelihood he may have stopped his vehicle at the intersection. Granted also that he did not see the motorbike. He is hardly likely in my view to have driven deliberately into the path of an oncoming vehicle. Nevertheless, the vehicle was there; the bike was there. With the open aspect of this intersection it was unreasonable for Mr Peacock to have missed seeing the motorbike.
There is no evidence of mechanical failure, lack of consciousness or the like. The only evidence before me was that Mr Peacock simply did not see the motorbike, let alone the rider, Jeffrey Oorschot. The evidence in my view does not give rise to an honest and reasonable but mistaken belief in the existence of a state of things, namely a clear road (ts 5 ‑ 6).
The law that is relevant to the issues on appeal
Section 59(1)(b) of the Road Traffic Act 1974 (WA) provides that the driver of a motor vehicle which is involved in an incident occasioning grievous bodily harm to another person commits an offence if at the time of the incident the driver was driving:
In a manner (which expression includes speed) that is, having regard to all the circumstances of the case dangerous to the public or to any person.
There are similar legislative provisions in other Australian jurisdictions, and in the King v Coventry (1938) 59 CLR 633, 639 the High Court held that 'manner of driving' includes:
[A]ll matters connected with the management and control of a car by a driver when it is being driven. It includes starting and stopping, signalling or failing to signal, and sounding a warning or failing to sound a warning, as well as other matters affecting the speed at which, and the course in which, the car is driven.
It was also held in Coventry (at 638) that it would be wrong to exclude an act or omission from 'manner of driving' simply because it was casual or transitory in nature. Casual behaviour on the roads and momentary lapses of attention resulting in danger to the public fall within the statutory prohibition.
Importantly in the context of the present case, 'manner of driving' refers to the quality of the driver's driving behaviour as distinct from any objective physical movement of the vehicle (Coventry at 638; McBride v The Queen (1965) 115 CLR 44, 50; McPherson v Lucas [2008] WASCA 56 [31]). McBride was a case similar to the present involving alleged 'inattentive' driving of which there was no direct evidence and which could only be inferred. The appellant had run down two pedestrians on a crosswalk and Barwick CJ (at 49 ‑ 50) made it clear that it was not that fact in itself which could constitute dangerous driving, but the alleged behaviour of the appellant said to have produced that result:
The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.
This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. 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.
Similarly, in McPherson v Lucas McLure JA (with whom Miller JA agreed) held at [31]:
The State's position is that the objective physical movement of the car is a fact in issue in an offence under s 59A. That is wrong. The relevant fact in issue is the actual driving behaviour of the driver: R v Coventry (1938) 59 CLR 633; McBride. The objective physical movement of the car is only a fact from which an inference about the actual driving behaviour of the driver can often but not always be drawn. It will most often be drawn when the driving is intrinsically dangerous regardless of the circumstances. It will be drawn less often when the quality of the driving depends on the surrounding circumstances as in McBride and this case. An allied contention of the State was that whether or not the appellant looked to her left to determine if there were oncoming cars on Broadway is irrelevant because the test of dangerous driving is objective. The correct position is that it is necessary to first make factual findings as to the actual driving behaviour of the driver. Whether or not the driver looked for oncoming traffic is part of the manner of driving and is relevant. The objective question is whether the manner of driving so found on the facts has the necessary quality of being dangerous to the public. In making this objective assessment, regard is had to what the driver knew or ought reasonably to have known.
The facts in McPherson v Lucas were similar to the present case in that they involved a collision at an intersection as a result of the appellant failing to give right of way. The offence was said to be constituted by inattentive driving, but the Magistrate dismissed the charge upon accepting the appellant's evidence that she had looked carefully both ways before entering the intersection. Nevertheless, it was an incontrovertible fact that there was no obstruction to the view that the appellant would have had of the other vehicle, and the decision at first instance was reversed on appeal. However, the Court of Appeal reinstated the Magistrate's decision for the following reasons (per McLure JA) at [34] ‑ [36]:
The issue in this case is the same as that identified by Barwick CJ in McBride namely whether the appellant drove so inattentively when approaching and entering the intersection that such inattentive driving constituted a danger to the public. If the appellant's evidence as to her manner of driving is accepted, as it was by the magistrate, it is not open to be satisfied beyond reasonable doubt that the appellant drove in a manner dangerous to the public. Moreover, because the State bears the onus of proving guilt beyond reasonable doubt, it would be necessary for the fact finder to positively reject the appellant's evidence in order to convict.
I was satisfied that the appeal judge erred in concluding that the only reasonable inference available from the incontrovertible facts was that a person exercising reasonable care would and should have seen Ms Crawford's vehicle. The evidence relating to the configuration and conditions of the intersection at the time of the accident (including the position of the sun, the colour of the Broadway verge which provided the background for Ms Crawford's silver vehicle, and the low shadows on Broadway) Ms Crawford's evidence that although she looked she did not see the appellant's vehicle and the number of accidents resulting in significant modifications to the intersection, provide a sufficient evidential foundation on which to accept or, at least, not reject the appellant's evidence as to her manner of driving on that day. As stated by Barwick CJ in McBride, it may be impossible to answer the question why the appellant did not see Ms Crawford's car and still have a reasonable doubt as to whether the appellant was driving so inattentively as to be a danger to the public. The magistrate did not err in failing to make a finding as to why the appellant did not see the other vehicle.
Moreover, even if the inferences drawn by the trial judge were the only reasonable inferences open, his findings are incapable of supporting the conclusion that the appellant breached s 59A(1)(b) of the Act. The appeal judge erroneously approached the matter as if the case was one of negligent breach of duty towards the occupants of Ms Crawford's vehicle. The appeal judge's findings would at best support an inference of careless driving.
The merits of the appeal
The manner of driving identified by the Magistrate as being dangerous was Mr Peacock's act of driving onto Tonkin Highway into the path of the motorcycle. It would be easy to construe this as a finding based on the objective movements of the vehicle, but I understand it to refer to Mr Peacock's physical acts in so controlling the vehicle.
This manner of driving would have been clearly dangerous if Mr Peacock had known of the approaching motorcycle, or if he had been reckless as to the possibility of any collision. However, in circumstances where it was common ground that Mr Peacock had looked for approaching traffic and believed there to be none, his act of driving into the intersection was not in itself dangerous. The real issue was whether the Magistrate was satisfied beyond reasonable doubt that there were shortcomings in Mr Peacock's manner of looking for approaching traffic which amounted to dangerous driving.
It was this very issue which was identified by the prosecution as the one on which the case turned. However, in his reasons for decision his Honour did not address this issue nor give any express consideration to the quality of Mr Peacock's manner of driving when looking out for approaching traffic. On the contrary, his Honour stated that 'the fact that he looked and did not apparently see the bike does not lessen the conclusion that the manner of driving was objectively dangerous'.
It would seem that the Magistrate's reasoning in this regard was largely based upon Moore v Moore [2001] WASCA 126, an authority referred to by counsel in the course of submissions. Moore was a single judge decision which predated the Court of Appeal decision in McPherson v Lucas, and in my view it should be confined to its own facts. In that case, the appellant had entered an intersection from a stop sign in daylight and collided with a vehicle which was clearly visible. There was no evidence of any factor capable of explaining why the appellant should not have seen the other vehicle.
In the present case it is submitted on appeal that there was evidence which offered possible explanations as to why Mr Peacock might not have seen the motorcycle. These possibilities are said to arise from the facts that it was dusk with only half light, the motorcycle was approaching from around a bend in front of a four wheel drive which had its headlights on, the motorcycle was black, and Mr Oorschot was wearing dark clothing. It is submitted that in these circumstances the silhouette of the motorcycle may well have merged with that of the four wheel drive vehicle behind.
Accordingly, it is submitted that if the Magistrate considered Mr Peacock to be a credible witness and accepted his evidence that he looked carefully to the right, there was a possible explanation why he did not see the motorcycle. Even if this explanation was not a reasonable possibility, an acceptance of Mr Peacock's evidence may still have left a reasonable doubt whether he was driving so inattentatively as to be a danger to the public. (In other words, the circumstances surrounding the collision may have supported an inference that there was some unknown reason why Mr Peacock failed to see the motorcycle).
In light of all of these considerations it was necessary for the Magistrate to positively reject Mr Peacock's evidence that he kept a proper lookout before there could be any satisfaction beyond reasonable doubt as to his guilt. Not only was there no such finding, but his Honour in large part appeared to accept Mr Peacock's evidence.
Accordingly, and with all due respect to the Magistrate, I consider that his reasoning for the finding that Mr Peacock drove dangerously was unsound.
Conclusions
In the absence of any finding as to the appellant's credibility it is not possible to determine the merits of ground 1 of the appeal and it cannot succeed. However, the appeal will be allowed on grounds 2 and 3, and the matter will be remitted back to the Magistrates Court for retrial.
3
3
1