Police v Bayley - [2007] SASC 49

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BAYLEY
[2007] SASC 49
Judgment of The Honourable Justice David
20 February 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS
Crown appeal against dismissal – respondent was charged with driving without due care and driving in a manner dangerous – magistrate found that respondent’s driving was attempt to escape from occupants of pursuing van whom respondent believed would cause irreparable harm to himself or his passengers – magistrate dismissed both charges on basis that defence of necessity had not been disproved – whether magistrate correctly applied defence of necessity – whether magistrate adequately dealt with conflict in evidence – held, appeal allowed – magistrate misapplied defence of necessity.
Road Traffic Act 1961 s 45, s 46, referred to.
Coghlan v Cumberland [1898] 1 Ch 704; R v Loughnan [1981] VR 443; R v Rogers (1996) 86 A Crim R 542, applied.

POLICE v BAYLEY
[2007] SASC 49
Magistrates Appeal

DAVID J. This is an appeal against a decision of a magistrate to dismiss charges of driving in a manner dangerous to the public, contrary to s 46 of the Road Traffic Act 1961(“the Act”), and driving without due care, contrary to s 45 of the Act. The separate charges related to different aspects of the respondent’s driving. The magistrate found that, objectively assessed, the respondent’s driving was such that both charges would be made out, however, she also found that the defence of necessity had been raised, and had not been negated beyond reasonable doubt by the prosecution. She therefore dismissed both charges.
Background Facts
The charges relate to events that occurred at approximately 2.00 pm on Saturday, 18 October 2003, when the respondent was driving his vehicle in a southerly direction along Port Wakefield and Main North Roads, Gepps Cross. Two female passengers accompanied him. There is no dispute that he stopped his vehicle at a red light at the intersection of Grand Junction Road and Main North Road at Gepps Cross. His vehicle was in the second lane from the right. Immediately to his right was the right turn lane. A van stopped alongside his vehicle whilst it was stationary, and a number of men got out of the van and approached his car and threatened the occupants. They not only did that, but they kicked and banged the car and tried to enter it. The reason for them doing so is a little unclear, but it appears that one of the respondent’s female passengers was a former girlfriend of one of the men in the van. One of the men poured a substance onto the windscreen of the respondent’s car. When the lights changed to green both cars then took off, and the respondent’s car struck the front left portion of the van. That collision is the subject of the charge of driving without due care. At trial there was a dispute as to whether this collision took place because the respondent wanted to take off quickly because of fear, or whether he was so incensed that he deliberately drove into the van.
Following that collision the respondent then drove his car along Main North Road, Gepps Cross at a speed of approximately 80 kilometres an hour. The speed limit in that area was 60 kilometres an hour. He veered his vehicle to the far left of the road in the lane that was marked for use by bicycles and parked cars only. The van was following the car closely, apparently in pursuit. The respondent’s car then veered to the right onto the wrong side of the road and hit a third car that was travelling in the opposite direction, along Main North Road. The respondent stopped his car to give assistance to the occupants of the car with which he had collided. The van also stopped, and the occupants jumped out and eventually chased the respondent.
At trial there was some dispute as to whether the respondent’s action of veering onto the wrong side of the road, which caused the accident, was due to the respondent losing control to avoid a car that was parked on the left side of the road, or was a deliberate manoeuvre to do a right hand turn.
The magistrate found that the respondent was clearly driving in a manner dangerous to the public. Her decision was based on the premise that he veered to avoid a car on the left and he lost control of his car. The magistrate also found that he was travelling at 80 kilometres per hour. However, she dismissed both charges on the basis that the prosecution had not excluded the defence of necessity.
Grounds of Appeal
The appellant submits that the magistrate erred in law in dismissing both counts of the complaint, and presents three ground of appeal. I summarise them as follows:
1.That the reasons of the magistrate fail to adequately deal with the evidence in that they fail to make findings of fact, including failing to resolve conflicts in the evidence, and that they reveal errors of finding of fact.
2.That the magistrate misapplied the defence of necessity to the facts of the case, and was wrong to conclude that the prosecution had not disproved the defence with respect to the charge of driving in a manner dangerous.
3.That the magistrate either failed to address the charge of due care, or as stated in the second ground of appeal, misapplied the defence of necessity with respect to the charge.
Counsel for the appellant argues that the magistrate’s order dismissing both counts of the complaint should be set aside. Counsel for the appellant further submits that rather than remitting the matter back before the magistrate to be resolved, I should decide the matter myself.
Factual Disputes
I will deal first with the factual disputes that are raised in the notice of appeal. The appellant’s factual disputes are grouped in two categories, namely:
1.with respect to the first collision, whether the respondent’s car struck the van deliberately in an attempt to get away or whether the collision was an accident; and
2.with respect to the second collision, whether he swerved to avoid a parked car or whether he intended to turn right across traffic to take a side street.
With respect to the first collision, in her reasons the magistrate found that:[1]
He believed the driver of the vehicle was trying to box him in and the driver of the vehicle intended to continue the assault which he had commenced whilst the vehicles were stationary. He therefore attempted to cut across in front of that vehicle in order to get away and the collision between his vehicle and the van was accidental.
[1] SAPOL v Edward David Joseph Bayley (Unreported, Magistrates Court of South Australia, MCHHL 03‑6237, Deland SM, 21 July 2006), [8].
The magistrate referred to the prosecution case that the respondent deliberately rammed the van because he was angry about the earlier assault. The magistrate then referred to the record of an interview by the police with the respondent some three days after the incident, where he claimed that the incident was an accident. The magistrate stated that his evidence in this regard “has been consistent”.[2] She noted the contrary evidence of Ms Joerdens that the respondent’s car rammed the van. The magistrate concluded that the respondent’s action in hitting the van:[3]
… was not deliberate in the sense of being one which was undertaken because of anger and that it was an act which he undertook because of fear.”
[2]Ibid [13].
[3] Ibid [15].
Counsel for the appellant submits that the magistrate failed to deal with inconsistencies in the respondent’s evidence. He submits that in the record of interview the respondent stated that he deliberately pulled out in front of the van, however in evidence he testified that the van moved into his lane and tried to block him, so he accelerated in a straight line and deliberately clipped the van to prevent this. Counsel for the appellant also points to the evidence of other witnesses who said that the respondent steered into the van. Counsel for the appellant therefore submits that the magistrate did not refer to this evidence or deal with these conflicts in her reasons, and her conclusion that the collision was accidental is consistent with neither account.
I am conscious that the magistrate heard the testimony of each of the witnesses, and in such circumstances was in the best position to decide the credibility of those witnesses and the weight to be given to their evidence.[4]
[4] Coghlan v Cumberland (1898) 1 Ch 704.
In my opinion, the finding that the collision was not as a result of the respondent’s actions carried out in anger or seeking retribution, but in an attempt to escape perceived danger was open to the magistrate.
In relation to the second collision, the magistrate found that while driving in the far left lane the respondent’s car approached a car parked in that lane. The respondent veered quickly to avoid the other car, and as a result he lost control of his car and colliding with the other car travelling in the opposite direction.
Counsel for the appellant submits that this finding, whilst consistent with what a number of witnesses assumed happened, conflicted with the evidence of the respondent. The respondent’s evidence was that he deliberately tried to turn right across traffic, intending to travel down a side street on the right hand side of the road.
The evidence does not support the magistrate’s finding on this point, and the finding is inconsistent with the respondent’s own evidence. However, in my opinion this error is of little consequence. Whether the respondent intended to turn across traffic, or whether he swerved to avoid a parked car, can have had little affect upon the magistrate’s ultimate finding that this driving was in a manner dangerous. Whether the respondent swerved to avoid a car or intended to turn across traffic, he did so at a speed of 80 kilometres per hour in a 60 kilometres per hour zone, in the presence of heavy traffic and also pedestrians. On either version he was driving in a manner dangerous to the public.
The Law of the Defence of Necessity
The law recognises a defence of necessity, both to criminal behaviour and statutory offences, such as driving in a manner dangerous or driving without due care. The court in R v Loughnan[5] held that there were three elements needed to raise the defence of necessity, namely:
1.the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect;
2.the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril; and
3.the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided.
In other words, the court held that the test would be:[6]
… would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril?
[5] [1981] VR 443, 448.
[6] Ibid 448 (Young CJ and King J).
Once the defence has been raised as a matter of fact, the onus is then on the prosecution to prove beyond reasonable doubt that it did not apply.
In R v Rogers,[7] Gleeson CJ said that requirements such as urgency and immediacy are:
… not as technical legal conditions for the existence of necessity, but as factual considerations relevant, and often critically relevant, to the issues of an accused person’s belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response.
[7] (1996) 86 A Crim R 542, 546.
Both of those cases dealt with a consideration of the defence of necessity when a prisoner has either escaped or attempted to escape due to situations within the prison. On both occasions, as a matter of fact, the defence was not available. In the present case the issue was whether the defence had been established in relation to both charges, and if established, whether the prosecution had negated it beyond reasonable doubt.
The Magistrate’s Treatment of the Defence of Necessity
The magistrate stated in her reasons:[8]
[8] SAPOL v Edward David Joseph Bayley (Unreported, Magistrates Court of South Australia, MCHHL 03‑6237, Deland SM, 21 July 2006) [18]‑[26].
The requirements of this defence are laid down in R v Loughnan [1981] VR 443 at 448. They are:
“(a)the criminal act must have been done only in order to avoid certain consequences which would have inflicted irreparable harm upon the accused or upon others whom he was bound to protect;
(b) the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril;
(c) the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided.”
Melany Myers in her evidence noted she was a passenger in the vehicle being driven by the defendant. She noted they pulled up at the lights. A couple of blokes got out of the car next to them. One being Wayne Bobridge with whom she had previously been going out, and another, Ricky Bignell. They were bashing on the window threatening to bash the defendant and called her a slut. She was panicking and the other young woman in the car was also panicking. They took off.
Lana Towers, the second passenger in the vehicle, noted the car pulled up next to them. Some of the people got out, they were hitting the car yelling and stuff. Hitting the windscreen and poured something onto the windscreen. They then drove off. She was not concerned about the manner in which the defendant was driving. She didn’t feel unsafe, but at the lights the other group had been threatening to bash the defendant and to kill him. She was scared. Ms Myers was scared and the defendant was scared.
Denise Joerdens, an independent witness, who happened to be driving in the location, noted she saw men get out of a van and punch the Commodore, kicking it and saying, “You’re fucking dead, we’re fucking going to get you.” They kept bashing and kicking at the car. They then got back into the van and the Commodore rammed into the van as it took off.
The criteria set out in R v Loughnan require the criminal act must have been done in order to avoid consequences which would inflict irreparable harm upon the accused or other persons whom he felt bound to protect.
Whilst there was no actual physical assault on the defendant or his passengers the evidence before me makes it plain other persons who were present in the vicinity were shocked by the attack on the occupants of the Commodore at the corner of Grand Junction and Port Wakefield Roads. They were shocked by the ferocity of the attack.
I accept the defendant believed if he did not escape from those persons who were in the van they would have inflicted irreparable harm upon himself or upon his passengers. Whilst the eventual accident in which he was involved highlights the danger he created as he drove at high speed down Main North Road, I accept the defendant honestly believed on reasonable grounds at the time that those acts were necessary in order to avoid imminent peril. Unfortunately he misjudged the gap and his capacity to manoeuvre the vehicle through the gap thereby spinning into the path of the oncoming vehicle and causing what was undoubtedly a nasty accident. I do not however consider his actions were such that they could be described as being out of proportion to the peril which was being avoided.
The defendant’s evidence was to the effect he was terrified by this group of men getting out of the van and coming to his vehicle. He did not know what they wanted. He believed one of them may previously have gone out with Ms Myers. They bashed and kicked at the van. He felt he was unable to do anything. He took off down Main North Road in an effort to get away from them because he believed that they were chasing after him and they were again trying to catch up so they could bash himself and his passengers. He constantly noted in his evidence he was in fear of the group in the van having already had them attack his car. He did not believe there was a police station to which he could easily get access. He believed the only way he could get away from the danger was to get away from the people in the van, and in so doing he drove fast down Main North Road.
I note the defendant’s evidence that as he drove down Main North Road he could see the van in his rear vision mirror, and he was concerned to try and get away from it. I note comment was made by the defendant with respect to difficulties to continuing at that speed, for example turning into a side road into a business or in any way avoiding the van following him. Given the distance involved, the traffic on the road and the evidence which the defendant has given of his perceptions, I am not satisfied that he has continued in a manner which was inconsistent with his belief that he needed to escape from the van. In those circumstances I am satisfied that his manner of driving was as a result of a need which he perceived, and in those circumstances I find him not guilty of the offence.
I have set out the magistrate’s reasons in full because it is clear that she has not addressed the requirement that the acts done to raise a defence of necessity must not be out of proportion to the peril to be avoided, and has not applied the appropriate test, namely:
… would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril?[9]
The magistrate seems to content herself with the fact that the respondent’s manner of driving was as a result of a need which he perceived amounted to necessity. She has, therefore, erred as a matter of law in not applying the law correctly.
[9] R v Loughnan [1981] VR 443, 448.
Counsel for the appellant also argued that the magistrate did not specifically consider the defence of necessity in relation to the charge of driving without due care. In my view, that is correct. It was not appropriate to treat the defence of necessity as equally applicable or not applicable to both charges. The nature of each offence was different, and the imminent peril and response to that peril which the respondent faced was also different. Therefore, both offences needed separate consideration. That was not done. I therefore find that the magistrate was in error.
Conclusion
The appellant submitted that I should deal with the matter myself, rather than remit the matter back to the Magistrates Court. In my view, this is the correct course, as I am in essentially the same position as the magistrate to decide the issue which the magistrate did not turn her mind to, namely the third test of R v Loughnan.[10]
[10] Ibid 443.
In relation to the charge of driving without due care, I deal with the matter on the basis of fact as found by the magistrate, namely the accident which occurred was not deliberate and was as a result of the respondent trying to get out of the way as quickly as possible because of the threat that he was facing. In those circumstances, bearing in mind the relatively slight nature of the offending and the respondent’s perception of the danger he and the occupants of his car were facing, it could not be said that the prosecution proved beyond reasonable doubt that the defence of necessity did not apply. The threat was immediate, and as a matter of proportionality the offending was not serious. I would, therefore, dismiss the appeal in relation to the charge of driving without due care.
However, I view the matter differently in relation to the charge of driving in a manner dangerous to the public. Although I have accepted that the magistrate erred in her factual finding as to why the respondent swerved to cross the road and hit an oncoming car, nevertheless my reasoning would apply to the act of driving as found by the magistrate. On any account the driving was clearly very dangerous. It was on a main road where there was great danger caused to both pedestrians and traffic, as was shown by the accident which ultimately occurred. As the magistrate found, it was a substantial distance from Grand Junction Road, where the original altercation took place, to where the accident occurred. Even allowing for the fact that the respondent drove in such a way because he had a genuine belief that he needed to escape from the van because of fear of harm to himself and his passengers, I find that it has been clearly proved beyond reasonable doubt that a reasonable man in the position of the accused had many other alternatives available, rather than doing what he did to avoid the peril. There was no reason to drive dangerously. He could have driven at a normal speed to a safe place, such as a police station, or a service station, or any other place where people were present. He could have driven down a quieter side street to the left until he had reached a safe place. In my view, these are just not theoretical alternatives, but were practical courses that could have been taken instead of driving in the way that he did. In applying the test of proportionality, I bear in mind that in these circumstances the driving was particularly dangerous and resulted in a very severe accident. I therefore find that the offence of driving in a manner dangerous has been proved.
Conclusion

The appeal against the dismissal of the charge of driving without due care is dismissed. The appeal against the dismissal of the charge of driving in a manner dangerous to the public is allowed, and that finding will be set aside. I order that the matter be remitted to the magistrate for submissions on penalty.