Police v Hingu
[2024] ACTMC 15
•29 July 2024
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Hingu |
Citation: | [2024] ACTMC 15 |
Hearing Dates: | 18 June 2024 |
Decision Date: | 29 July 2024 |
Before: | Magistrate Temby |
Decision: | I find the Defendant guilty of the offence charged. |
Catchwords: | CRIMINAL LAW – DRIVING OFFENCES – Aggravated furious, reckless or dangerous driving – meaning of “reckless”k – meaning of “dangerous” - Vulnerable road user - meaning of “pedestrian” |
Legislation Cited: | Road Transport (Safety and Traffic Management) Act 1999, s6, s6(1)(a)(c), s7,s7(2), s7A, s7A(1)(a)(vi) Road Transport (General) Act 1999 Road Transport (Road Rules) Regulation 2017, s12, s14, s18 Legislation Act 2001, s139(1) Transport Legislation Amendment Bill 2014 |
Cases Cited: | Kane v Dureau [1911] VLR 293 Monaghan v Calatzis [2021] ACTSC 4 McBride v The Queen (1966) 115 CLR 44 The King v Coventry (1938) 59 CLR 633 |
Parties: | Jeffery Evan Thomas Jervis (Informant) Krishna Hingu ( Defendant) |
Representation: | Solicitors Director of Public Prosecutions R & J Lawyers ( Defendant) |
File Numbers: | CC 3089/2024 CC 2340/2024 |
MAGISTRATE TEMBY:
Introduction
1․Early one summer’s morning, Ms Ko had the misfortune of standing at a bus stop when the Defendant drove a car into her. The Defendant had veered onto the wrong side of the road, mounted the curb and collided with Ms Ko, throwing her into the air. Ms Ko landed on her back and her head hit the ground.
2․Thankfully, Ms Ko’s injuries were limited to bruising to her left hip, buttocks and torso. Glass shards were also embedded in her left elbow, which had struck the Defendant’s windscreen with sufficient force to break the windscreen.
3․The Defendant pleaded guilty to a charge of negligent driving occasioning actual bodily harm (charge CC2024/2340), contrary to s 6 of the Road Transport (Safety and Traffic Management) Act 1999 (Safety and Traffic Management Act).
4․However, the Defendant pleaded not guilty to a charge of driving recklessly, or in a way that was dangerous to the public, on a road or road related area (charge CC2024/3089), contrary to s 7 of the Safety and Traffic Management Act. A factor of aggravation for that charge that is relied on by the Prosecution, pursuant to s 7A of the Safety and Traffic Management Act, is that it is alleged that the manner of the Defendant’s driving put the safety of a vulnerable road user at risk. The Defendant disputes that that was the case.
What are the issues in dispute?
5․The key facts relevant to the determination of the proceedings were agreed between the parties. They are set out later in this judgment. A police statement through which the Defendant provided her version of events was also tendered, along with the statement of a witness and Closed Circuit Television (CCTV) footage of the incident.
6․Consistently with the Defendant’s plea of guilty to the negligent driving charge, the Defendant does not dispute that she was driving a vehicle, nor that she intended to drive a vehicle. She does not dispute that the driving occurred on a road or road related area. She accepts that the place where Ms Ko was standing at the bus stop on Paul Coe Crescent was a road related area.
7․The Defendant disputes that she drove in a way that was reckless, or in a way that was dangerous to the public, and disputes that Ms Ko was a vulnerable road user.
8․Accordingly, the issues in dispute are:
(a)the characterisation of the Defendant’s driving; and
(b)whether Ms Ko was a vulnerable road user.
Principles and directions
9․There are a number of decision-making principles that are relevant to the determination of criminal proceedings.
Onus and standard of proof
10․The Prosecution of course bears the onus of proving the guilt of the Defendant. The Defendant does not have to prove that she did not commit the offences with which she is charged. The standard of proof the Prosecution must meet is proof beyond reasonable doubt and the Defendant cannot be found guilty unless the evidence which I accept satisfies me beyond reasonable doubt of her guilt. If I am satisfied that there may be an explanation consistent with the innocence of the Defendant, or I am unsure of where the truth lies, then I must find that the charge has not been proved to the standard of proof required by law.
11․The burden of proof on the Prosecution does not mean that the Prosecution must prove every fact in dispute beyond reasonable doubt, only that it must prove the elements of the charge beyond reasonable doubt.
Reliability of witnesses
12․There were no witnesses at the hearing of this matter, however there were witnesses to the incident – the Defendant and a bus driver, Mr Mazur.
13․The Defendant’s record of interview and a transcript of an interview given to police by Mr Mazur were tendered. I must determine whether the versions of events given by the Defendant and Mr Mazur are reliable. I can accept part of their statements or accept or reject them all. The law does not require me to give all evidence the same weight.
Determination of facts according to evidence
14․I must determine the facts in accordance with the evidence, considering it logically and rationally, without acting capriciously or irrationally. I must not let emotion enter into the decision-making process. I must bring an open and unbiased mind to the evidence but I may use my common sense and experience in assessing the evidence. Both the Prosecution and Defendant are entitled to my verdict free of partiality, prejudice, favour or ill-will.
15․I must, of course, deliver my decision according to the evidence.
Drawing of inferences
16․I may draw reasonable inferences from the facts that I find are established. I must consider any possible inference to ensure that it is a justifiable inference, and I must not draw an inference from the direct evidence unless it is a rational inference in all the circumstances. It is permissible for the court to rely on an inference, of which the court is satisfied should be drawn beyond reasonable doubt, as proof of an element of an offence.
Application of common sense and life experience
17․A Magistrate may apply common sense and life experience in assessing evidence and making findings. Finders of fact need to decide how humans are likely to have behaved and it is appropriate for the finder of fact to have regard to what they perceived to be the apparent logic of events.
Direction in relation to Defendant’s decision not to give evidence at the hearing
18․The Defendant did not give evidence during her hearing. No inference, adverse to her, can be drawn from her decision to exercise her right to silence. Nor can the absence of evidence from the Defendant be used to fill in any gaps or used as a makeweight for any deficiency in the Prosecution case.
Direction in relation to Defendant’s version of events
19․While the Defendant chose not to give evidence, a police statement was tendered in the Prosecution case which records the Defendant’s version of events and answering police questions in relation to the incident. That statement is now evidence.
20․The Defendant’s out of court assertions are not sworn testimony and unlike admissions which are against the Defendant’s interests, may be afforded less weight than her admissions. I am not obliged to attach the same weight to all the statements of the interview and it is for me to decide the weight to be given to particular statements.
21․Nevertheless, I must not find the Defendant guilty if the evidence relied on by the Defendant gives rise to a reasonable doubt about the Defendant’s guilt. Specifically, if I believe the Defendant’s version of events, or if I think it might be true, I must find the Defendant not guilty.
22․If I do not believe the account relied on by the Defendant, I should put it to one side. The question remaining is, has the Prosecution, on the basis of the evidence that I do accept, proved the Defendant’s guilt beyond reasonable doubt.
23․For the avoidance of doubt, I note that this direction does not require me to first consider the Defendant’s version of events in isolation and then, only if I reject that evidence, to consider the Prosecution’s evidence. I am required to consider the whole of the evidence before making my findings.
Agreed Facts
24․The facts agreed by the parties are relevantly as follows.
(a)On 29 December 2023, at approximately 7.00 am, the Defendant was driving a car.
(b)The Defendant exited the driveway of her residence on Noongale Street, Ngunnawal, and proceeded towards the intersection of Noongale Street and Paul Coe Crescent.
(c)The Defendant turned right onto Paul Coe Crescent and continued for about twenty metres, where she then crossed the lane of oncoming traffic and mounted the curb on the opposite side of the road.
(d)The Defendant drove into a bus stop.
(e)At the time, Ms Ko was standing at the bus stop waiting for a bus to go to work.
(f)The Defendant’s car collided with Ms Ko.
(g)Ms Ko was thrown into the air as a result of connecting with the front right side of the bonnet. Her left elbow struck the right side of the windscreen, with sufficient force for the windscreen to break.
(h)Ms Ko landed on her back, hitting her head on the ground and was left dazed and confused, sitting on the ground next to the bus stop.
(i)Ms Ko felt dizziness and pain and could not move.
(j)The Defendant continued on Paul Coe Crescent where she came to a stop next to an oncoming bus. The driver of the bus, Mr Mazur, saw the events detailed above and immediately stopped his bus.
(k)The Defendant initially exited her car and walked toward Ms Ko and asked her if she was okay. The Defendant then returned to her car and drove it to the nearby IGA car park off Paul Coe Crescent, where she parked the car.
(l)Mr Mazur contacted 000 and requested ACT Ambulance Service to attend the location.
(m)At 7.20 am, police attended the location.
(n)As a result of the Defendant’s car colliding with Ms Ko, she sustained an impact injury including glass shards embedded in her left elbow and bruising on her left hip, buttocks and torso.
(o)Ms Ko was conveyed to hospital where she received treatment for her injuries.
(p)At the location of the incident, the Defendant identified herself to police as the driver of the car which collided with Ms Ko.
(q)The Defendant provided police with an initial version of events, stating that she turned right onto Paul Coe Crescent, the steering wheel locked, causing her to continue in the direction of the bus stop. She tried to press the brake lever and the brakes did not work. She tried the handbrake, and the handbrake did not work, causing her to collide with Ms Ko.
(r)The Defendant’s car underwent a mechanical inspection. Police received results of the examination on 3 January 2024. No mechanical faults were identified.
(s)Police obtained CCTV footage which captured the collision at the bus stop.
(t)On 10 February 2024, the Defendant participated in a digital record of interview with police. The Defendant admitted to being the driver of the car which collided with Ms Ko.
(u)The Defendant also provided conflicting versions of events, stating alternatively that she blacked out and that there were mechanical issues which caused the incident.
Evidence
CCTV footage
25․There is a CCTV which captures footage of the relevant bus stop. Footage from that CCTV was obtained for the relevant time period.
26․The CCTV footage shows the Defendant driving along Paul Coe Crescent. She was not driving fast.
27․She had veered onto the wrong side of the road before coming into shot. She continued veering to the right until she hit and mounted the curb just prior to the bus stop where Ms Ko was standing. She straightened the direction of the car before hitting Ms Ko.
28․After hitting Ms Ko, the Defendant veered to the left, moving quickly onto the correct side of the road, and then continued driving in the left hand lane until out of shot.
29․It is difficult to precisely estimate the length of road observable from the CCTV but it appears to be around 50 metres (approximately 20 metres between the Defendant’s car coming into shot and her hitting Ms Ko, and around 30 metres from that point until the Defendant’s car is out of shot). Given that the Defendant was already on the wrong side of the road before coming into shot, it is not clear how far the Defendant drove on the wrong side of the road, however, it was at least 20 metres.
Statement of Mr Mazur
30․Mr Mazur gave an interview to police on 11 February 2024. He said that he was driving along Paul Coe Crescent when he witnessed a car “approaching from the opposite side crossing the road” (that is, driving towards him). He observed that the car had come from Noongale Crescent.
31․He saw the car (the car driven by the Defendant) hit a female person standing at the bus stop (Ms Ko) and he then stopped the bus.
32․Mr Mazur went to check on Ms Ko and called emergency services. He saw that the Defendant also came to check on Ms Ko before she returned to her car and moved it to a parking lot.
33․Mr Mazur said that the Defendant was shaky, panicking and crying. She said to Mr Mazur that she did not know what had happened.
Statement of Defendant
34․The Defendant gave an interview to police on 10 February 2024. Relevantly, she made the following statements.
(a)On the relevant day, she was going to the gym. She does that every day at 7.00 am and then goes to work. She had been living at the address in Noongale Crescent since the first week of December 2023.
(b)She drove the car daily to go to work.
(c)The car is regularly serviced.
(d)She made a right turn from Noongale Crescent onto Paul Coe Crescent and suddenly blacked out. She did not know what happened after that.
(e)She did remember seeing a bus coming towards her but said there was no one else on the road.
(f)She said that she saw a girl (Ms Ko) but the time at which the Defendant says she saw Ms Ko is unclear. I note that:
i.when asked what the last thing she remembered doing when she turned onto Paul Coe Crescent, she said, “I actually don’t remember … I just saw the girl”. This indicates that she saw Ms Ko prior to the collision;
ii.however, when asked when the Defendant saw the girl, she said, “when I left – left from her”. This indicates that she only saw Ms Ko after the collision;
iii.her statement is further complicated by her statement, “I don’t know at that time what happened, but after that, I realised, like, there was a girl standing there”. The beginning of this statement appears to be referring to a time after the collision, but Ms Ko was not standing after the collision. Inconsistently, she later says that the first thing she remembered was, “I just saw the bus was stopped there in the middle of the road. And then the girl – girl was lying down. So I parked my car and then just went there”;
iv.in a later answer, to the proposition “you mentioned that when you turned onto Paul Coe Crescent, you saw the girl”, the Defendant was clearer, saying “I didn’t saw her at that time. When I done it, at that time I didn’t saw her”.
(g)The collision occurred very close to the Defendant’s house.
(h)The Defendant was not feeling tired and had no history of blacking out while driving. She was not receiving any medical treatment or taking medication at the time and her general health was normal. She had no illnesses. She felt okay as she was driving along her street. She does not wear prescription glasses.
(i)She did not see a doctor in relation to any problem with blackouts subsequent to the incident. She said that she did not want to see a doctor because she would “need to say whole story and then I’ll cry”.
(j)She had her mobile phone with her in the car. She usually keeps it in her handbag while she is driving. She said that it was in her handbag that day and that she was not distracted by it.
(k)She said that she did not think at the time that she may have had a collision with Ms Ko. She repeated that she blacked out and said that she did not know how it happened. However, she recalled speaking to police on the day of the incident, at which time she gave an inconsistent answer. She told police when they arrived at the scene that:
i.the steering wheel locked when she turned onto Paul Coe Crescent and that is why it continued onto the side of the road where the bus stop was located.
ii.she tried to pull the handbrake to stop the car and pushed the foot brake in but nothing happened.
iii.accordingly, she could not stop the car and ran over the girl.
(l)The Defendant was asked why she had not mentioned to police that she had blacked out. She said that she was “just worried about that girl because she was with the ambulance”. Later in the interview she said she was stressed.
(m)The Defendant was asked how she remembered the mechanical issues with the car if she blacked out. She said she tried to control the car but couldn’t remember what happened.
(n)It was put to the Defendant that the results of the mechanical testing on her car showed that there were no mechanical faults at all. She said that when she took the right turn, she “couldn’t go this way. I tried … to come to my – my side, but I don’t know what happened and then why I can’t turn the thing”. When asked to confirm that the steering went to the right and she tried to stop, she said “Yeah”. She agreed that that meant that she remembered part of the incident, but then said that she did not remember how she came to be on the wrong side of the road.
Reliability of witness statements
Mr Mazur
35․I do not have any concerns with respect to the reliability of the statement given by Mr Mazur to police. Nor were any concerns raised by either of the parties.
The Defendant
36․I have considerable concerns, however, with respect to the reliability of the version of events given by the Defendant.
37․The Defendant submitted that her version of events was unchallenged, because the Prosecution decided not to obtain medical evidence with respect to the Defendant’s claimed blackout. As I said at the hearing, I do not accept that submission. The versions of events the Defendant gave to police were unsworn and were not the subject of cross-examination in court. The Defendant exercised her right not to give evidence at the hearing.
38․The Prosecution’s decision not to obtain medical evidence does not alter that position.
39․I also note that the Defendant had indicated (to the Court and the Prosecution), until close to the hearing, that the characterisation of her driving would not be in issue. The Prosecution’s decision not to obtain medical evidence cannot be taken to be an acceptance of the Defendant’s claim that she had a blackout. As discussed below, there are several reasons why that claim cannot be accepted.
Version 1 – mechanical issues
40․One version of events given by the Defendant is that there were mechanical issues with her car which resulted in her veering to the right and being unable to correct that course or stop the car. I am not satisfied that that version of events might be true.
41․Firstly, it is inconsistent with the Defendant’s admission that she drove negligently.
42․Second, the proposition that a regularly serviced car had mechanical issues of the severity described by the Defendant for a short period of time and then had no mechanical issues immediately after the collision is implausible. In this respect, I note that:
(a)the Defendant was able to steer the car onto the correct side of the road and park the car, check on Ms Ko and then go back to her car and drive it to a nearby carpark and park it there; and
(b)a mechanical inspection of the car performed within a few days of the incident found that the car had no mechanical faults.
Version 2 – blackout
43․The second version of events given by the Defendant is that she blacked out between turning onto Paul Coe Crescent and stopping her car beside the bus. At the hearing, the Defendant ultimately said that she did not rely on the blackout argument, however, for completeness, I note that I am not satisfied that that version might be true.
44․Firstly, it is inconsistent with the Defendant’s admission that she drove negligently.
45․Second, it is inconsistent with the version of events the Defendant gave to police immediately after the incident and on which she at times continued to rely in her formal recorded interview with police. She cannot both have blacked out and have realised that the car was experiencing mechanical issues and that she was unable to correct the path the car was travelling on or stop it.
46․Third, if she had in fact had a blackout, I am confident that she would have told police that that had happened, but she instead said that the car had experienced mechanical issues. Her explanation to police in the recorded interview, for why she did not tell them she had had a blackout, being that she was worried about Ms Ko and was stressed, is unconvincing. She adopted a particular position at that time, which was that the car had experienced mechanical faults.
47․Fourth, the Defendant had no medical issues, was not tired and felt okay on the day of the incident. She has never had a blackout before. It is hard to believe that she had an isolated blackout at the time of the incident.
48․Fifth, it is implausible that, if she had had a blackout, she could have emerged from that blackout at the point of impacting with Ms Ko and been able to correct the course of the car onto the correct side of the road, park her car, have a conversation with Mr Mazur and check on Ms Ko, and then return to her car to move it to a safer parking location. Had she had a blackout, it is far more likely that she would have continued in a similar direction to the course the car was on and crashed into the bus stop seat or bushes, because it would have taken time for the Defendant to regain full consciousness.
49․Relatedly, as noted above, the Defendant told police that she did not see Ms Ko until after she had hit her. If, by that statement, she was explaining that her blackout had continued until after the moment she hit Ms Ko, that is inconsistent with the Defendant’s path of travel. As noted earlier, the Defendant straightened the direction of the car once it mounted the curb, prior to hitting Ms Ko.
50․Finally, if the Defendant had blacked out, it is likely that she would have consulted a doctor about it. It would be a very serious matter, to have had a medical episode which resulted in the loss of control over her car, particularly where, as here, a bystander has been hit. Her explanation, that she did not want to have to tell her story again because it would make her cry, is unconvincing.
Conclusion in relation to reliability of Defendant’s versions of events
51․I reject the Defendant’s versions of events.
52․The reason why the Defendant veered onto the wrong side of the road is, thus, unexplained. Ultimately, the Defendant submitted that the characterisation of her driving would need to be determined by reference to the Defendant’s statement that she did not see Ms Ko and does not know how the incident occurred. Maybe, the Defendant suggested, she was simply distracted in her mind.
53․I do not accept that the Defendant does not know how the incident occurred, but she was not obliged to give an explanation.
54․I accept, as a matter of inference, that the Defendant was distracted. There is no other plausible explanation for why she was driving on the wrong side of the road.
55․I also accept that she did not see Ms Ko until it was too late. However, that is because she was distracted and was not looking where she was going.
Issue 1: Characterisation of the Defendant’s driving
Was the Defendant’s driving reckless?
56․The word “reckless” is not defined in the Safety and Traffic Management Act, nor the Road Transport (General) Act 1999.
57․The Prosecution relies on the common law test established in Kane v Dureau [1911] VLR 293. In that case, the defendant was charged with an offence of driving a motor car on a public highway recklessly.
58․At 296, Cussen J said:
In my opinion, a person may be said to drive a motor car recklessly if the circumstances are such that substantial harm may happen to another person using the road, and the person driving the motor car, either because he thinks that the conduct of the other person is such that he deserves to be frightened or to have his property slighted, or for some other reason of that kind, is, or at all events appears to be, indifferent to the consequences that may actually happen from his driving on … I think that “recklessness,” which is characterized by indifference to consequences, is to be distinguished in this respect from “negligence,” in which the consequences are as a rule not expected at all.
59․This definition bears some similarity to the concept of recklessness as a fault element in the criminal law, which requires an appreciation of the risk that a particular result will happen if particular conduct is engaged in and a decision by a defendant to proceed anyway. The Prosecution accepts that the test identified in Kane v Dureau requires the Prosecution to establish an element of fault (the identified state of mind) on the part of the Defendant.
60․In order to determine whether a person has driven recklessly, s 7(2) of the Safety and Traffic Management Act requires that consideration be given to all the circumstances of the case, including:
(a)the nature, condition and use of the road or road related area where the offence is alleged to have been committed; and
(b)the amount of traffic on, or that might reasonably be expected to have been on, the road or road related area.
61․I am satisfied, beyond reasonable doubt, that the Defendant drove her car recklessly. I am satisfied that the circumstances were such that substantial harm could have been occasioned to another person using the road on which she drove and that the Defendant was indifferent to the consequences of her driving in the manner that she was.
62․While she was driving early in the morning (at 7.00 am), it is likely that there would be other people around. Indeed, on the part of the road on which the incident occurred, there was a person (Ms Ko) waiting at the bus stop adjacent to Paul Coe Crescent and a bus driving in the opposite direction which was close enough to the Defendant’s car for Mr Mazur to observe the street that the Defendant had turned out of (onto Paul Coe Crescent) and to observe the incident itself. While Ms Ko was not on Paul Coe Crescent, her presence at the bus stop is demonstrative of the fact that the Defendant needed to be looking out for both drivers and pedestrians using the road.
63․Even though the Defendant may not have realised that she was veering towards the right hand side of the road, she must have been aware that driving her car whilst distracted, without looking where she was going, risked substantial harm to another person using the road and yet she continued to drive in that fashion until she collided with Ms Ko. This is so, in my view, even though the Defendant was not driving fast and drove that way for a short distance.
Did the Defendant drive in a manner that was dangerous to the public?
64․Like the concept of recklessness, the concept of driving in a manner dangerous to the public is not defined in the Safety and Traffic Management Act, nor the Road Transport (General) Act 1999.
65․It was, however, considered in the case of Monaghan v Calatzis [2021] ACTSC 4. McWilliam AsJ (as her Honour then was), said at [65] to [66]:
65. What is considered to be ‘dangerous to the public’ is not defined in the Road Transport Act. However, there is established authority in McBride v R [1966] HCA 22; 115 CLR 44 (McBride) at [12] and [14] per Barwick CJ:
[12] 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.
...
[14] This concept is in sharp contrast to the concept of negligence. 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.
66. See also King v R [2012] HCA 24; 245 CLR 588 at [32]- [33], citing the above passages. At [34], The plurality referred to Jiminez v The Queen [1992] HCA 14; 173 CLR 572 (Jiminez) at 579 as authority for the proposition that:
...the level of risk engendered by dangerous driving must be greater than that ordinarily associated with the driving of a motor vehicle.
67. The plurality went on to state at [38]:
The ordinary meaning of 'dangerous' is '[f]raught with or causing danger; involving risk; perilous; hazardous; unsafe'. It describes, when applied to driving, a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver's own passengers.
68. Then at [46], the plurality referred to the degree of risk being that set out by Barwick CJ in McBride, and adopted in Jiminez, stating:
...It may be that in many if not most cases dangerous driving is a manifestation of negligence in the sense of carelessness. It may also be a manifestation of deliberate risk-taking behaviour. ...
66․In McBride v The Queen (1966) 115 CLR 44, cited in Monaghan v Calatzis, the High Court considered an offence, one element of which was that of driving “in a manner which was dangerous to the public”. The court said, at [11] to [14]:
11. Naturally the first matter in the case of a charge that the vehicle has been driven in a manner which is dangerous to the public is to determine and present to the jury what precisely is the manner of driving which the Crown alleges the accused has pursued and which it claims is dangerous to the public. If that manner of driving is not by its very description potentially dangerous to the public, it would be necessary to isolate for the jury the features of it which the Crown charges to be so dangerous. Of course, if the evidence could properly suggest to the jurymen some other feature of the applicant's driving as itself dangerous to the public, the jury should be told that they are competent to treat that feature of the driving rather than the feature or features of the driving chosen as dangerous by the Crown, as in breach of the section. Equally, if the evidence could bear such an interpretation, they could be told that if they find the applicant to have been driving in the precise manner charged by the Crown as dangerous but think it dangerous to the public for some reason other than that assigned by the Crown, they are at liberty to find that element of the offence established upon the footing of their own view as to the reason why the manner of driving was dangerous to the public. But in any case, the jury would need to be told what the expression "dangerous to the public" as used in the section involves. (at p49)
12. 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. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public, but the need for death or injury to a person to result from impact with a vehicle so driven may make that question unlikely to arise, though the possibility of its doing so must be acknowledged. (at p50)
13. 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. (at p50)
14. This concept is in sharp contrast to the concept of negligence. 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. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby. These distinctions make it imperative that the jury be specifically directed as to the criteria to be applied and the distinctions to be observed in determining whether any particular speed or manner of driving can have the quality, intrinsic or occasional, of being dangerous to the public within the meaning of the section: and that the particular features of the driving charged as in breach of the section be isolated for the jury and related to these criteria. (at p50)
67․The Prosecution also relies on The King v Coventry (1938) 59 CLR 633. Latham CJ, Rich, Dixon and McTiernan JJ said, at 637 to 639:
… in our opinion, indifference to consequences is not an essential element either of driving in a culpably negligent manner, or of driving at a speed which is dangerous to the public, or in a manner which is dangerous to the public. The driver may have honestly believed that he was driving very carefully, and yet may be guilty of driving in a manner which is dangerous to the public. The jury is to determine, not whether the accused was in fact, as a matter of psychology, indifferent or not to the public safety, but whether he has driven in a manner which was dangerous to the public. The standard is an objective standard, "impersonal and universal, fixed in relation to the safety of other users of the highway" (per Hewart L.C.J. in McCrone v. Riding[2]; and see Kingman v. Seager[3]). The standard is impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles.
No doubt the language of the section does not exclude a defence of mistake of fact on reasonable grounds or of involuntariness (for example, interference by another person with the driving of the car), and perhaps there may be other exceptional excuses, based on special facts, to which a state of mind may not be immaterial. But, speaking generally, the expression "driving at a speed, or in a manner, which is dangerous to the public" describes the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence. It is not desirable to attempt to make an exhaustive catalogue of possible defences, and what we have said is sufficient to deal with the present case.
… But we desire to add that we do not agree in the view expressed in the following statement in the judgment of the Full Court:—"We think that a manner of driving involves more than a casual or transitory act or omission. It involves a course of conduct although not necessarily for any considerable period. The failure to give a signal, or to sound a warning, could hardly be described as a manner of driving." It is, in our opinion, wrong to exclude an act or omission from "manner of driving" because it is casual or transitory in some senses in which these somewhat flexible words may be understood. Such an exclusion may even suggest that carelessness or inattention may constitute a defence to a charge under the relevant provision of the section. Sudden, even though mistaken, action in a critical situation may not, in all the circumstances of a case, constitute driving to the danger of the public. But casual behaviour on the roads and momentary lapses of attention, if they result in danger to the public, are not outside the prohibition of that provision merely because they are casual or momentary. Further, "manner of driving" includes, in our opinion, all 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.
68․The principles I take from the above cases are as follows:
(a)Dangerous driving looks to the character of the driving and to the risk created by a person’s driving. The two concepts are related.
(b)“Manner of driving” includes all matters connected with the management and control of a car, including starting and stopping, signalling or failing to signal, sounding a warning or failing to sound a warning, and other matters affecting the speed at which and the course in which the car is driven.
(c)Dangerous driving involves a sufficiently serious breach of the proper conduct of a vehicle as to be in reality, and not speculatively, potentially dangerous to a member of the public who may be on or in the vicinity of the roadway on which the driving is taking place (including motorists, cyclists, pedestrians and the driver’s own passengers). The level of risk engendered must be greater than that ordinarily associated with the driving of a motor vehicle.
(d)In contrast to the concept of recklessness, whether a person has driven dangerously involves an objective test. It does not require any given state of mind (such as indifference to consequences) as an essential element of the offence. For example, a person may honestly believe that they were driving carefully, yet in fact have driven in a manner which is dangerous to the public. Further, casual behaviour and momentary lapses of attention, if they result in danger to the public, may constitute dangerous driving.
(e)Damage caused by driving may afford evidence from which the quality of the driving may be inferred, but it is not that result which gives it that quality. A person may drive in a manner dangerous to the public without causing any actual injury.
(f)Driving may be dangerous because of speed but that is not the only departure from the proper conduct of a vehicle that can be dangerous.
(g)Consideration must be given not only to the nature of the driving, but also to the circumstances surrounding the driving. Some types of driving are inherently dangerous, while sometimes driving will be dangerous because of the circumstances prevailing at the time of driving.
69․As is the case in relation to the concept of recklessness, s 7(2) of the Safety and Traffic Management Act requires that consideration be given to all the circumstances of the case, including:
(a)the nature, condition and use of the road or road related area where the offence is alleged to have been committed; and
(b)the amount of traffic on, or that might reasonably be expected to have been on, the road or road related area.
70․For similar reasons to those which satisfy me that the Defendant drove recklessly, I am satisfied beyond reasonable doubt that the Defendant drove in a manner that was dangerous to the public. Driving without looking where she was going, veering onto the wrong side of the road, driving on the wrong side of the road for at least 20 metres, and mounting the curb at which a bus stop was located adjacent to the road the Defendant was driving on, involved a sufficiently serious breach of the proper conduct of the Defendant’s vehicle as to be in reality potentially dangerous to a member of the public who might be on or in vicinity of the part of Paul Coe Crescent where the Defendant was driving. The Defendant’s description, in her submissions, that the manner of her driving involved a transitory swerve, is inapt.
71․The level of risk engendered was clearly greater than that ordinarily associated with the driving of a motor vehicle, even accounting for the fact that the Defendant was driving early in the morning and she was not driving fast. There is probably no time of the day when driving of that kind would not be dangerous but, regardless, 7.00 am is a time of day when there were likely to be at least some other people on or in the vicinity of the roads the Defendant was driving on (as there were on this occasion).
Conclusion in relation to Issue 1
72․I find that the Defendant drove recklessly, and in a way that was dangerous to the public, whilst she was driving on Paul Coe Crescent on 29 December 2023.
73․Accordingly, I find the Defendant guilty of the offence of driving a motor vehicle recklessly, or in a way that is dangerous to the public, on a road or road related area, contrary to s 7 of the Safety and Traffic Management Act.
Issue 2: Whether Ms Ko was a vulnerable road user
74․As noted earlier in these reasons, Issue 2 arises because section 7A of the Safety and Traffic Management Act provides that an offence against section 7 is an aggravated offence if, amongst other things, the Defendant was driving in a way that put at risk the safety of a vulnerable road user (s 7A(1)(a)(vi)).
75․Whether Ms Ko was a vulnerable road user is to be determined having regard to particular definitions set out in the Safety and Traffic Management Act and the Road Transport (Road Rules) Regulation 2017 (Road Rules Regulation). Before turning to those definitions, I pause to note some preliminary matters.
Preliminary matters
76․First, the Prosecution submitted, and the Defendant accepted, that Ms Ko was standing on a road related area. I agree with the position taken by the parties as “road related area” is defined in the Road Transport (General) Act 1999 as including a footpath or nature strip adjacent to a road. The bus stop at which Ms Ko was waiting falls within that description.
77․Secondly, section 12 of the Road Rules Regulation provides that a reference in that legislation to a “road” includes a road related area. Accordingly, for the purposes of the Road Rules Regulation, Ms Ko was on a road.
78․Thirdly, neither party raised any issue with respect to the fact that Ms Ko was standing at the bus stop adjacent to Paul Coe Crescent, and not on Paul Coe Crecent itself. I considered for myself whether that could be an issue, however, for several reasons, I do not consider that it is one for the following reasons.
(a)Section 7A of the Safety and Traffic Management Act does not, in terms, require that the vulnerable road user whose safety the Defendant has put at risk be located on the same road as the road on which the Defendant drove recklessly or dangerously – it simply requires that the Defendant have been driving in a way that put the safety of a vulnerable road user at risk.
(b)An interpretation of s 7A of the Safety and Traffic Management Act that does not limit the class of persons who may be a vulnerable user, to persons using the road on which the Defendant drove, is consistent with the definition of dangerous driving, which will be satisfied not just when the Defendant’s driving is potentially dangerous to a member of the public who may be on the road on which the driving is taking place, but also to a member of the public who may be in the vicinity of the road on which the driving is taking place.
(c)Further, there is a real risk when a person, like the Defendant, is driving whilst distracted and not paying attention to where they are driving, that they will veer off the road. In those circumstances, like here, the safety of pedestrians on a footpath (a road related area) adjacent to the road being driven is put at risk. It would, in my view, be inconsistent with the purpose of s 7A(1)(a)(vi) of the Safety and Traffic Management Act (which I have discussed further below) to adopt an interpretation which excluded such pedestrians from the protection which s 7A(1)(a)(vi) seeks to afford.
(d)Relatedly, while I have found that the manner of the Defendant’s driving on Paul Coe Crescent was reckless and dangerous, the manner of her driving resulted in her driving for a short period on the footpath adjacent to that road. Accordingly, she was driving on the road related area that Ms Ko was using. Driving in a way that results in a car unexpectedly driving on a pedestrian footpath (being a road related area) clearly puts the safety of pedestrians using that footpath at risk.
Does Ms Ko meet the definition of a vulnerable road user?
79․“Vulnerable road user” is defined in the Safety and Traffic Management Act as “a road user other than the driver of, or passenger in, an enclosed motor vehicle”. Several examples of a vulnerable road user are set out with the definition, being:
(a)pedestrians;
(b)cyclists;
(c)motorcyclists;
(d)riders of animals; and
(e)users of personal mobility devices.
80․The Prosecution drew my attention to the explanatory memorandum to the Road Transport Legislation Amendment Bill 2014, which introduced section 7A of the Safety and Traffic Management Act. The explanation provided in that document confirms what appears to be the clear intent of s 7A(1)(a)(vi) when read in conjunction with the definition of “vulnerable road user”. It states:
The aggravating factor of driving in a way that put at risk the safety of vulnerable road user reflects the increased risk posed by dangerous driving behaviours to vulnerable road users. These road users (such as pedestrians, cyclists, riders of animals and motorcyclists) are particularly “vulnerable” in their interactions with other motor vehicles as they do not benefit from the level of crash protection which is provided by other vehicles. This vulnerability increases the likelihood that furious, reckless or dangerous driving will have catastrophic consequences.
81․“Road user” is defined in the Safety and Traffic Management Act by reference to section 14 of the Road Rules Regulation. That provision defines a road user to be “a driver, rider, passenger or pedestrian”.
82․Accordingly, while the examples of vulnerable road users identified in the Safety and Traffic Management Act are simply examples (and, therefore, do not purport to constitute an exhaustive list of vulnerable road users), the definition of “road user” in the Road Rules Regulation is confined to four classes of person. The only one of those classes into which Ms Ko might fall (at the relevant time) is as a “pedestrian”.
83․Whether Ms Ko was a pedestrian is the central point in dispute between the parties.
Was Ms Ko a pedestrian?
84․The word “pedestrian” is not defined in any of the road transport legislation.
85․Section 18 of the Road Rules Regulation provides a list of persons who are included in the definition of a pedestrian, however it does not limit the meaning of the word. It identifies that persons in, or in control of, a mobility device (whether a wheelchair, recreation device or toy) are included within the meaning of the word “pedestrian”.
86․The Prosecution submits that regard should be had to the ordinary meaning of the word “pedestrian”. The Prosecution submits that the ordinary meaning of the word is “someone who goes or travels on foot” and that this meaning can cover someone who is standing still, as Ms Ko was. The Prosecution submits that, on a commonsense interpretation, Ms Ko is a vulnerable road user.
87․The Defendant’s key submission is that a pedestrian is a person who is in motion and, since Ms Ko was standing still, she cannot be a pedestrian. The Defendant relies on the ordinary meaning of the word pedestrian and on s 6 of the Safety and Traffic Management Act.
88․As to the latter, the Defendant identifies that one of the examples of actual bodily harm for the purposes of s 6 of that Act is a pedestrian receiving a sprained ankle from being hit by a car on a pedestrian crossing. The Defendant submits that to use a pedestrian crossing necessarily entails being on a road in motion.
89․It is no doubt true that a pedestrian might be someone walking across a road at a pedestrian crossing. However, s 6 of the Safety and Traffic Management Act is concerned with a different offence to the charged offence which the Defendant disputes, and the focus of ss 6 and 7A(1)(a)(vi) of the Safety and Traffic Management Act is different, in terms of the harm, or risk of harm, to which each provision is directed.
90․I note, in particular, that paragraphs 6(1)(a) to (c) of the Safety and Traffic Management Act require consideration of whether negligent driving has “occasioned” particular forms of harm (or death) in general terms. They do not limit the classes of persons to whom harm might be occasioned.
Dictionary definitions
91․Dictionary definitions of the word “pedestrian” include:
(a)going or performed on foot (Merriam-Webster online dictionary);
(b)a person who is walking, especially in an area where vehicles go (Cambridge online dictionary); and
(c)a person who is walking in a city, along a road, etc (Britannica Dictionary, online).
92․I have considered, below, the applicability of the elements of the above definitions to the interpretation of the word “pedestrian” for the purposes of the Safety and Traffic Management Act.
Pedestrians are people on foot or in (or in control of) a mobility device
93․An element that is common to the dictionary definitions (explicitly or implicitly) is that a pedestrian is someone who is on foot. Clearly, however, the definition of a pedestrian for the purposes of the Safety and Traffic Management Act is not so confined, as s 18 of the Road Rules Regulation also includes within the definition of a pedestrian, a person in, or in control of, a mobility device.
Pedestrians as road users
94․An element that is common to the latter two dictionary definitions is that a pedestrian is someone who is utilising a road or an area where vehicles go. This, of course, is consistent with the use of the word “pedestrian” in the Safety and Traffic Management Act and the Road Rules Regulation, as a “road user”. A person walking or jogging in a park, for example, is not a pedestrian merely because they are travelling by foot.
Pedestrians are not just people who are walking
95․I also note that two of the dictionary definitions define a pedestrian as a person who is walking. In the context of the legislation presently under consideration, I do not consider that the definition would be limited in that way. For example, a person jogging or roller skating across a pedestrian crossing is, in my view, as much a pedestrian as a person walking across a pedestrian crossing. As noted above, section 18 of the Road Rules Regulation also includes within the definition of a pedestrian a person in a mobility device.
Pedestrians need not be in motion at all times
96․Finally, I note that the dictionary definitions, as the Defendant submits, refer to a pedestrian as a person in motion (“going” or “walking”). That is, a pedestrian is someone who is using a road to get around. However, I do not consider that the definition of a pedestrian should, for the purposes of s 7A of the Safety and Traffic Management Act at least, be limited to persons who are in motion at all times.
97․The purpose of s 7A(1)(a)(vi) of the Safety and Traffic Management Act is to punish more severely those persons who drive dangerously and put at risk the safety of road users who are not in enclosed vehicles and, therefore, do not have the same crash protection as is provided by a vehicle. Indirectly, it seeks to protect such road users.
98․Subsection 139(1) of the Legislation Act 2001 provides that, in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. In my view, the interpretation that would best achieve the purpose of s 7A(1)(a)(vi) of the Safety and Traffic Management Act is an interpretation of the word “pedestrian” as incorporating a person who is standing still on a road (including a road related area). That is because:
(a)a person standing still on a road (or a person who is in a stationary mobility device) is still using the road, even if not as actively as a person who is in motion on the road; and
(b)such a person is just as much in need of protection as the person who is in motion on the road. That is, they are no less vulnerable.
99․Relatedly, drawing a distinction between persons using a road who are in motion, and those who are not, is artificial. What if a person walked onto a pedestrian crossing but stopped, for example because they saw someone driving dangerously towards them and were fearful they might be hit, or they stopped in order to bend down to pick up something they had dropped? What if an elderly person stopped briefly when they were part-way across the crossing to catch their breath? In my view, to describe these people as pedestrians until the point they stopped, but not to characterise them in that way again until they resumed walking, involves an artificial characterisation of the person’s course of travel.
100․So too would be to characterise a person crossing a road as a pedestrian, but not to characterise in the same way a person waiting at a pedestrian crossing for oncoming cars to slow. Similarly, there is no relevant difference between a person crossing a road and a person who, having crossed the road, stops on the footpath or nature strip adjacent to the road to consider where they will go next.
101․Each of those persons are, and remain, pedestrians, because they are using roads (including road related areas) to get around by foot or mobility device. They do not cease to be pedestrians at any point in time just because they are not constantly in motion.
102․This view is supported by the definition of a pedestrian contained in the Encyclopaedic Australian Legal Dictionary which defines a pedestrian as “A person travelling by foot along the highway. Pedestrians need not be in motion …”.
103․If it is right that being in motion is not an essential characteristic of being a pedestrian, then a person who, like Ms Ko, is standing still on a road (a road related area) waiting for a bus is also a pedestrian because she is using a road to get around and, at that time, she was on foot. Of course, once she gets onto the bus, Ms Ko is no longer a pedestrian, but it is not uncommon for a person’s journey to include some travel as a pedestrian and other parts of the journey as, for example, a driver or passenger in a vehicle.
Definition of a pedestrian
104․Drawing the above discussion together, I consider that a pedestrian, for the purposes of s 7A(1)(a)(vi) the Safety and Traffic Management Act, is a person who is travelling by foot or mobility device on a road (including a road related area). A pedestrian need not be in motion at any given moment in time. Relevantly, the definition extends to a person using a road for the purpose of waiting for another form of transport to arrive to convey them to their next destination.
Was Ms Ko a pedestrian?
105․Having regard to the definition of pedestrian I have identified above, I consider that Ms Ko was a pedestrian. She was travelling to her work. At the time she was hit by the Defendant she was not in motion, however she was on foot on a road related area (bus stop footpath adjacent to Paul Coe Crescent), waiting for a bus to arrive to take her to her next destination.
Conclusion in relation to Issue 2
106․I find that Ms Ko was a vulnerable road user.
107․Accordingly, I find that the offence committed by the Defendant against s 7 of the Safety and Traffic Management Act is aggravated, pursuant to s 7A(1)(a)(vi), by the fact that the Defendant was driving in a way that put at risk the safety of a vulnerable road user.
Findings
108․On the charge of driving a motor vehicle recklessly, or in a way that is dangerous to the public, on a road or road related area, contrary to s 7 of the Safety and Traffic Management Act, I find the Defendant guilty.
109․I further find that the offence is aggravated, pursuant to s 7A(1)(a)(vi) of the Safety and Traffic Management Act, by the fact that the Defendant was driving in a way that put at risk the safety of a vulnerable road user.
| I certify that the preceding one-hundred and nine [109] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby. Associate: Niamh Dwyer Date: 29 July 2024 |
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