Police v Morris
[2009] QMC 18
•5 March 2009
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Morris [2009] QMC 18
PARTIES:
POLICE
(prosecution)
v
CRAIG DAMIAN MORRIS
(defendant)
FILE NO/S:
MAG130744/08(7)
DIVISION:
Magistrates Courts
PROCEEDING:
Complaint – Summary hearing
ORIGINATING COURT:
Magistrates Court at Tully
DELIVERED ON:
5 March 2009
DELIVERED AT:
Tully
HEARING DATE:
27 February 2009
MAGISTRATE:
Brassington J
ORDER:
Defendant convicted.
CATCHWORDS:
TRAFFIC LAW – OFFENCES – drive without due care and attention
Transport Operations (Road Use Management) Act 1985, s 83
Crispin v Rhodes (1986) 40 SASR 202
COUNSEL:
Defendant appeared on own behalf
SOLICITORS:
Prosecution appeared on own behalf
Defendant appeared on own behalf
To reach his home on Cliff Road Mr Teagle has to turn across the Bruce Highway. Cliff Road intersects with the Bruce Highway about 10 km north of Cardwell. At this point the Bruce Highway is a two lane Highway with no slip lane to protect turning drivers. From the Munga Creek Bridge to the Cliff Road intersection there is a 500 m straight stretch of road. The Highway speed limit is 100 km/hour. On the 24 March 2008, at around 6pm, the Highway was very busy. It was Easter Monday and many vehicles were heading south. Mr. Teagle, heading north, was stationary at the intersection waiting to turn. He had his brake lights on and was using his indicator signal indicating a turn. It was dusk but not dark and he described visibility as good. Some cars had their lights on and some did not.
The turn across the Bruce Highway causes some apprehension to Mr Teagle and his partner as they are aware that cars using the highway are not expecting a vehicle to be essentially stationary on the highway. As he was slowing down to turn (at about 40 km / hour) he looked into his rear vision mirror and saw a truck coming around the corner. As he became stationary and waited at the intersection he kept glancing into the rear vision mirror and saw the truck still coming, he then began to look into the rear vision mirror more frequently and saw the truck was not slowing down and he feared the truck was going to hit his car. Just at impact he was able to accelerate and at that point truck hit him on the left hand side which spun him across the intersection.
The truck was towing a car carrier. It too spun out of control causing it to roll. Cars were lost from the trailer and wrecked on the Bruce Highway. Apart from minor lacerations and shock no person was seriously injured or killed.
Mr Teagle spoke to the driver of the truck after the collision. Understandably he was in shock and the driver, Mr Morris, the defendant in these proceedings was also very upset. Mr Teagle recalls Mr Morris said to him “Are you out of the vehicle I just hit” He said “I don’t know what happened I just did not see you.”
Mr Morris is charged upon complaint with driving without due care and attention. The issue for me to determine is whether the prosecution have proved beyond a reasonable doubt that the defendant was driving without due care and attention.
Before turning to the resolution of this issue I wish to briefly discuss some procedural matters and also how I should instruct myself with regards to the law.
PROCEDURAL MATTERS:
In an endeavour to prove the charge the prosecution called three witnesses and tendered a number of exhibits. The defendant himself did not give evidence. Such a choice was of course the defendants and no adverse inference can be drawn from his choice: he is entitled to the presumption of innocence; the prosecution bears the burden of proving each element of the charges and excluding any defences raised on the evidence beyond reasonable doubt.
The defendant was not legally represented so at the outset of the trial I explained to him the trial processes. I was very concerned that in his choice not to be legally represented (which appeared to be dictated by financial reasons and the effective lack of any legal aid in summary proceedings) the defendant was disadvantaged. He was obviously still affected by the incidents and did not pursue any effective cross examination. I offered him an adjournment to seek further advice but he rejected this course and then exercised his choice not to give evidence. Realistically the Court cannot descend into the arena to give legal advice to an unrepresented defendant – this would prejudice the prosecution. While endeavouring to ensure that the defendant was afforded a fair trial I consider I should record that his decision to appear without legal assistance meant the evidence I received was very different from what I expect might be elicited with the assistance of legal counsel.
I am giving my reasons without a transcript. The evidence was very short and I will refer to some of the evidence so my findings can be understood. In making my findings I will refer to some of the evidence but I have considered the whole of the evidence presented and because matters have not been stated it does not mean that I have disregarded them or not given them sufficient weight, nor because matters have been mentioned does it follow they have been given undue weight.
Turning then to how I should direct myself with respect to the law to be applied:
THE LAW
Section 83 of the Transport Operations (Road Use Management) Act 1985 provides that:
Any person who drives a motor vehicle on a road or elsewhere without due care and attention or without reasonable consideration for other persons using the road or place shall be guilty of an offence.
Maximum penalty—40 penalty units or 6 months imprisonment.
In this case the prosecution must prove beyond a reasonable time that Craig Morris drove a truck on the Bruce Highway on 24 March 2008 at Ellerbeck without out due care and attention. Time, place and the identity of the driver were not in issue.
The question for me is was the defendant exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances. The circumstances include those created by the defendant and the lack of ‘due care and attention’ may not amount to negligence to another but may be the failure to exercise the degree of care and attention that a reasonable and prudent driver would have exercised (Johannsen v Zeller ex parte Zeller [1958] Qd R 366).
I also refer to the South Australian case of Crispin v Rhodes (1986) 40 SASR 202 (as cited in Laitt v Magden 16 MVR 72) where it was held that ``due care'’ means adequate caution in all the circumstances; watchfulness, caution and vigilance is required. At 204 O'Loughlin J, quoting Murray CJ in Wintulich v Lenthall [1932] SASR 60 at 63, said:
“The standard, it will be noted, is not that of the exceptionally careful man, nor is it that which the actual driver may consider to be sufficient, but the standard of the average man who has regard for the safety and the rights of others. The duty is reciprocal, and, therefore, the burden lies equally on each for the benefit of all.”
In the same case, at 204, the learned judge referred to Mayo J in the case of Milkins v Roberts [1949] SASR 215 at 254 said: “`Due care’. . . does not connote `care due’ to some other person. `Due care’ means, I think, `adequate caution in all the circumstances’.”
These observations seem to me entirely consistent with the Queensland authorities.
In directing myself I also note the caution in some Western Australian cases that the fact that an accident does occur does not prove that a driver has driven without due care and attention (see for example Burke v Traill-Nash 36 MVR 161).
I also note the extract in the NSW Motor Vehicle Law [135,430.35]
A driver who makes an error of judgment can still be guilty of negligent driving, although in situations of sudden emergency "if the driver was in fact exercising the degree of care and attention which a reasonably prudent driver would exercise, he ought not to be convicted, even though another and perhaps more highly skilled driver would have acted differently": Simpson v Peat, above, at 28; see also Weir v Colmore-Williams [1917] NZLR 930; Malcolm v Sarich (1921) 16 MCR 169.
RESOLUTION OF ISSUES:
From the Munga Creek Bridge to the collision is about 500 m of straight road with no obstruction to visibility. At the intersection there is no realistic option for a truck the size of the defendant’s to pass by – even by getting off the road. On the Western side of the Bruce Highway – opposite Road is a 1 m ditch then a banana plantation.
As I understand the prosecution case submission a reasonable and prudent driver would have been keeping a proper lookout and observed the stationary motor vehicle. The defendant did not observe the stationary motor vehicle, despite the brake lights and indicator. I accept the car was illuminated to this extent. Mr Teagle and his partner were credible witnesses who told their account in a very straight forward manner. They were not challenged in cross examination Sgt. Smith, an experienced police officer who had qualifications in investigating traffic incidents, corroborated that illumination by examination of the motor vehicle at the scene. He described the indicator as having ‘hot shock’ which indicated when it ceased to function the blinking light was on.
The Teagle’s car was a dark blue commodore. There was no evidence as to visibility or lighting apart from Mr Teagle. The prosecution submission was that the car was visible. I have been concerned about the quality of this evidence given the time – between 6pm and 6.15pm and the colour of the car indicated some compromise in visibility. However, Mr Teagle gave compelling evidence as to how he continued to observe the truck in his rear vision mirror over the 500 m and became increasingly concerned when the truck failed to stop. I am satisfied to the requisite standard that the visibility of the Berlina given the colour and the time was to some extent compromised but that a reasonable and prudent driver keeping their concentration on the road ahead would be in a position to see the motor vehicle in time to stop.
The defendant spoke to Sgt Smith at the scene. He did not take part in any formal interview and elected not to give evidence. His account largely reflected what he told Mr Teagle. He did not see the Berlina until too late. Relevant aspects of the conversation were:
· He had 15 years driving trucks and 4 years driving this truck. He travelled this road twice daily
· On this day he was not tired nor affected by alcohol or drugs
· As he came along the road he checked his mirrors to make sure the trailer was straight and then saw a black vehicle in front. The distance when he first saw it was two truck lengths. He pulled to the left and braked but as there was no shoulder and no room to pass he went off the road and lost steering and veered to the right hand side.
· There was a low sun
Taking into account the reduced visibility, the environment and circumstances were such that a reasonably prudent driver should have realised that the car was stationary in enough time to brake safely. The only distraction raised by the defendant was that after exiting the bridge he did check his mirrors to see his carriage was travelling straight. No time estimate is given but the inevitable conclusion is he was distracted from the road in front long enough that when he resumed attention he failed to appreciate that the vehicle in front was stationary until it was too late to effectively brake.
I have no doubt that the defendant and Mr Teagle were placed in a very dangerous situation by the design of the road. It is the main highway along which numerous heavy vehicles drive. Mr Morris was not speeding. The combination of lowered visibility, momentary inattention and the unexpected presence of a stationary vehicle on a highway with a speed limit of 100 km/hour left the defendant with two little time to brake. Effective evasive action was inhibited by the design of the road – there was no shoulder and the metre deep ditch meant that he could not steer effectively around the stationary vehicle.
Despite the objective difficulty of the situation confronting Mr Morris I am satisfied by the prosecution to the requisite standard that a reasonably prudent driver must drive to the conditions. This includes taking into account less then ideal driving conditions. Unfortunately there are roads that are not designed as they should and the driver must take such circumstances into account. This location is a rural area but along the route are settled areas where there are intersections. Cars turning into these intersecting roads are not uncommon. I am satisfied that a reasonably prudent driver must drive to avoid a collision by driving at a speed that permits sudden stops for obstacles on the road. An ordinary prudent driver must consider the possibility of obstacles and, in the circumstances of the defendant, anticipate that there might be vehicles that are stopped on the road. The decreased visibility called for increased vigilance. I am satisfied by Mr Teagle’s evidence that he was stopped for an appreciable time. Time enough for a reasonable and prudent driver to realise that the vehicle was stationary. Once again I refer to his evidence of his observing the truck over some distance in support of this finding. I also refer to the evidence of Ms Duke, the passenger of Mr Teagle’s observations.
I have considered the issue of s 25 of the Criminal Code and am satisfied that the prosecution have excluded this defence to the requisite standard. Section 25 provides relevantly that a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act otherwise.
For the reasons that I have already set out I am satisfied by the prosecution an ordinary person in the circumstances that the defendant was in should have observed the motor vehicle for a considerable time before the defendant did. I rely particularly in making this finding on the evidence of Mr Teagle in being able to observe the vehicle for a considerable time. Therefore the appearance of the motor vehicle was not a sudden or extraordinary emergency. Rather the emergency was the failure of the defendant to see the motor vehicle because of his distraction until too late.
In this case I am satisfied by the prosecution that the defendant’s failed to exercise the degree of care and attention that a reasonable and prudent driver would have exercised and I accordingly convict him of the complaint.
0
0
1