Police v Smith - [2012] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v SMITH
[2012] SASC 114
Judgment of The Honourable Justice Peek
6 July 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS
Prosecution appeal from an acquittal by a Magistrate.
Respondent charged with an offence contrary to s 45(1) Road Traffic Act 1961 - respondent and a motorcyclist travelling in opposite directions both entered a sharp bend on a dirt road with limited visibility due to the bend's curvature and vegetation - the common practice of drivers was to travel in the centre of the road due to the road's dilapidated condition - a collision occurred between respondent's vehicle and trailer and the motorcyclist when the respondent's vehicle was across the notional centre line of the road.
Prosecution appeal - whether the Magistrate erred in law in dismissing the complaint - principles governing prosecution appeals, s 45 Road Traffic Act 1961, considered.
Held: Appeal allowed.
The Magistrate failed correctly to apply the law to a matrix of fact sufficiently delineated and found beyond reasonable doubt. Further matters bearing on whether a rehearing should be held considered.
Road Traffic Act 1961 (SA) s 45(1); Australian Road Rules (SA) rr 129, 131, referred to.
Murphy v Police [2011] SASC 138; R v Edwards [2009] SASC 233; Stoeckel v Harpas (1971) 1 SASR 172; Police v Melisi (2010) 106 SASR 105; R v Wilkes (1948) 77 CLR 511; Thorogood v Warren (1979) 20 SASR 156; Semple v Williams (1990) 156 LSJS 40; Police v Lloyd (1998) 72 SASR 271; Police v W, BC (2006) 160 A Crim R 278; Police v Eiffe (2007) 98 SASR 79; Police (SA) v Murphy (Unreported, Supreme Court of South Australia, Debelle J, 9 January 1996); Police v A, TG (2006) SASC 299, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"without due care or attention" and "without reasonable consideration for other persons using the road"

POLICE v SMITH
[2012] SASC 114
Magistrates Appeal

PEEK J. Prosecution appeal from an acquittal by a Magistrate.
Introduction
The respondent, Mr Kenneth Smith, has just turned 70 years of age. He is a farmer and has lived the whole of his life in the Meadows area.
On 18 October 2009, he was driving a utility towing a double axle trailer on the Greenhill to Flaxley Road from one property to another to check some cattle and silage. He was in no hurry. As he rounded a sharp bend, Mr McNamara travelling on a motorcycle in the opposite direction hit the trailer, possibly also hitting the right side of the utility immediately beforehand. Mr McNamara unfortunately suffered severe injuries and died some days later.
The complaint was in the following terms:
On the 19^th day of October, 2009 at Flaxley in the said State drove a vehicle namely a Motor Vehicle, Registration Number (SA) XRR-223 on a road namely Greenhill To Flaxley Road without due care.
Section 45 of the Road Traffic Act, 1961.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that serious injury or death was caused to a person.
It was clearly a tragic accident. At the risk of over simplifying matters (since there was considerable detailed evidence called and many photographs tendered) the relevant bend was very sharp and visibility around it was severely limited by its curvature and vegetation. The width of the road at the bend was six metres. The road was made of dirt with its sides in a dilapidated condition but with the centre hardened and safer to travel on. This had led to a practice being adopted by drivers in the area of using the better centre portion of the road. This practice is not uncommon and was thus described by the witness Mr England called by the respondent:
so on every dirt road you have an area adjacent to the windrow where people never travel and then you have an area of gravel that is sometimes travelled but then you have the main area in the middle which is generally the travelled area, it is the best part of the road where people normally travel: [T137 line 22-35].
Unfortunately, both drivers here appear to have adopted that practice as they approached and entered the bend from opposite directions. Both vehicles were only travelling at about 30–35 kilometres per hour. It is clear that the respondent’s utility and trailer were over the centre line for his direction of travel at the time of impact. The precise line of approach by the driver of the motor cycle cannot be known but it is possible that he too was initially over the centre line (for his direction of travel), and that he corrected on seeing the utility, but was unable to avoid impact.
The driving of the respondent is not otherwise complained of. The respondent was in no way intoxicated or otherwise misbehaving and his vehicle was in good condition.
The Magistrate’s judgment
Apart from an introduction, the Magistrate’s judgment is as follows:
An unsealed country road in beautiful country between Greenhill and Flaxley. A sharp 63 degrees bend. Weather conditions were pleasant. No more than six metres of available but variable road surface. Vegetation lining the eastern side of the bend severely restricting visibility for drivers approaching the bend from either direction. Of course inability to see an approaching vehicle does not support an assumption that there is no approaching vehicle. A downward inclination in the road towards the western side. No advisory signs that I could see, an absurd 100 kilometre an hour default speed limit. This was and is a dangerous bend.
As to the legal principles to be applied here I respectively adopt the exposition of those principles by adopting the Police v Milesi and add that there is not and never will be a better description of the drivers duty than that given to us by Wells, J in Stoeckel v Harpas.
At about 4.30pm on the 18^th October 2009 Mr Smith was driving a Nissan utility with a double axle trailer attached towards the bend that I have described, the bend that is shown in the photographs in a northerly easterly direction. The trailer was 2.17 metres wide. The late Mr McNamara was approaching the bend travelling uphill in a south westerly direction. It appears that there was contact between Mr McNamara or part of his motor cycle with the rear driver’s side corner of the Nissan before the motor cycle struck the off side wheel arch of the trailer with disastrous force.
At first sight there is the appearance of simplicity; the late Mr McNamara came around the corner to find when it was too late, that Mr Smith’s vehicle and trailer were, if not blocking his path, severely encroaching upon his share of the available road surface.
I ask myself on what basis could it be held that Mr Smith’s driving fell short of the care required in the circumstances.
There is no suggestion, never has been, that Mr Smiths ability to drive was diminished by drugs or alcohol or infirmity. It appears that both the Nissan utility and the trailer were in roadworthy condition. Mr Smith cannot be criticised for the speed of his vehicle. While he, Mr Smith, might have seen the motor cycle before he did, and without any evidence of the course or speed of the motor cycle it is difficult to draw any conclusions about that, it may not have done any good if he had.
The prosecution says he was careless in choosing the line that his vehicle took into the bend. I think that if this had been a sealed road that proposition would have been close to undeniable but it appears that both Mr Smith and the late Mr McNamara on his motor cycle were in a sense competing for space within what Mr England describes as the travelled section of the road. If Mr McNamara had been doing that there could not, I suggest, have been any criticism of him and I suggest that catastrophic though the consequences of the imminent collision were Mr Smith cannot be fairly criticised for doing that.
With the advantages of foresight, hindsight and preparation it would certainly be possible, dangerous but possible, to recreate the movements of the two vehicles approaching the bend in such a way as to ensure that there would be no collision between them but in my judgment this was a tragic misadventure. In my judgment this charge has not been proved beyond reasonable doubt.
The ground of appeal
There is only one ground of appeal which is as follows:
The learned magistrate erred in law in dismissing the Complaint in that the evidence demonstrated that the defendant was driving without due care when the collision occurred.
The submissions for the appellant
The essence of the submissions for counsel for the appellant is captured by the following passages from his summary of argument.
The standard of care requires that drivers do not assume a path of travel where they risk collision with oncoming traffic they can not see. For that reason, on a corner and in many other circumstances such as a crest which present restricted visibility to drivers travelling in either direction, departure from that standard invariably involves a lack of due care.
On the facts proven, properly applied to the law, the respondent had driven without due care. An ordinary road user in any way minded to the risk posed by oncoming traffic would not have assumed a path of travel on a corner with limited visibility by assuming a path of travel that occupied part of the side of the road used by oncoming traffic. Doing so created a risk of collision with an oncoming motorist travelling within their side of the road.
As to the law, counsel for the appellant submitted:
The test is objective. The offence incorporates “any material departure from the high standard of care which is due of anybody who drives a motor vehicle. It is the standard which gives rise to a civil action in damages”. It includes “a measure of what is sometimes called defensive driving, or a look out that not only sees immediate, or immediately developing danger, but looks well ahead and searches for potential danger.” In assessing whether a driver has departed from the standard, it is not material that a driver was unaware of the risks which the manner of driving presented to other road users. …
The standard is to be informed by the specific requirements of the law governing traffic. The Australian Road Rules in Part 11, Division 2 provide for the rules for “Keeping to the left”. Relevantly, the obligations in ARR 129 and ARR131 (and the exception in ARR139) provide:
129—Keeping to the far left side of a road
(1) A driver on a road (except a multi-lane road) must drive as near as practicable to the far left side of the road.
…
Even if it were acceptable to do so, there was no material reason to depart from the requirement to travel near to the left. There was no obstruction. The road surface was an unexceptional unsealed road. The vehicle being driven was a 4-wheel drive. The appropriate course was to slow in the corner and to maintain travel on the left hand side - and at the very least within the 3m to the left of the centre line.
Counsel’s ultimate submission was that the Magistrate exhibited in his reasons “error in understanding the test” and “has departed from the requirement in the case law that both a driver not drive in a position so as to create a risk of collision and furthermore drive in a manner anticipating and avoiding risk”.
The submissions for the respondent
The overall approach of the respondent is encapsulated in the following submissions:
The respondent submits that the Learned Magistrate correctly applied the test for driving without due care.[1]
The finding of fact was that as the case against the respondent did not rely on the usual aggravating factors of alcohol, speed or defective outlook, it was well within the right of the Trial Court to find that the respondent was not careless beyond reasonable doubt in choosing to approach the bend using the safest “travelled” section of the unsealed road. This was the sole allegation to support the charge.
The Trial Court in coming to its decision was greatly assisted by the view of the accident scene, as applied for by the appellant, with the respondent’s support.
The prosecution’s allegation of driving without due care was based solely on the position of Mr Smith’s vehicle whilst negotiating the bend. This was not proved to the Trial Court’s satisfaction beyond reasonable doubt. There is no reason to interfere with this verdict.
[1] Referring to the Magistrate’s reference to Police v Melisi (2010) 106 SASR 105 and Stoeckel v Harpas (1971) 1 SASR 172.
As to the matters of fact in the present case, he submitted inter alia:
·because of the condition of the road as described by both Officer Lovell and Mr England the safest method of travelling would be for the respondent to drive on the compacted areas of the road. The compacted areas or “travelled section”[2] both have the right hand side wheels for a motor vehicle using the middle compacted area.
·The line of sight for the respondent in his vehicle would have only been marginally improved concerning oncoming traffic compared with being positioned on the travelled section.
·it was not practicable to drive completely to the left of the centre of the road due to its width and condition of the road.
·The respondent was taking the safest route possible at a speed that gave maximum time to avoid oncoming traffic if possible.
·The mere fact of an accident does not mean the respondent drove without due care.
[2] See definition by Mr England at T120.
Counsel thus submitted that “at all material times the respondent was driving with due care and attention on a deliberately chosen and universally used path”.
Discussion
The authorities make clear that one should be very cautious about allowing an appeal when a Magistrate has not been satisfied beyond reasonable doubt as to the required facts[3] (as distinct perhaps from an acquittal based upon an incorrect construction of the offence or the elements of it[4]). Thus in Police v Melisi White J stated:[5]
[3]In the case of a prosecution appeal against an acquittal based upon a magistrate’s finding of a reasonable doubt, the court, in recognition of the principle against exposing a defendant to double jeopardy, acts with restraint. In particular, an appeal against an acquittal which involves issues of fact, or in which the conclusions at first instance depended upon the magistrate’s assessment of conflicting testimony, requires appellate restraint.
[Footnote omitted]
[3] Authorities include: R v Wilkes (1948) 77 CLR 511; Thorogood v Warren (1979) 20 SASR 156, 159; Semple v Williams (1990) 156 LSJS 40; Police v Lloyd (1998) 72 SASR 271; Police v W, BC (2006) 160 A Crim R 278; Police v Eiffe (2007) 98 SASR 79.
[4] This distinction is clearly made by Debelle J in SA Police v Murphy (Unreported, Supreme Court of South Australia, Debelle J, 9 January 1996).
[5] (2010) 106 SASR 105, 106-107.
It can easily be appreciated that the Magistrate is in by far the best position to consider matters of fact, particularly such matters as assessment of the credibility and reliability of witnesses, and that these advantages, which are important in any case, should usually be accepted as determinative in the context of a prosecution appeal against an acquittal having regard to the element of double jeopardy involved in such a proceeding.
It is sometimes said that there should be less reluctance to disturb an acquittal in a case where the facts are agreed and that what is in dispute is whether the inference of guilt of the offence must be drawn from those facts beyond reasonable doubt.[6]
[6] The decision in Police v A, TG (2006) SASC 299 may be an example.
However, in the present case there are a number of disputes about the facts, some of which the Magistrate has not resolved. The appellant’s complaint here is really that the Magistrate failed both to delineate the facts that he found beyond reasonable doubt and to apply the correct legal principles to a delineated matrix of fact found beyond reasonable doubt. In this regard, the respondent would not agree that there is no dispute about the facts because he too complains that the Magistrate has not adequately dealt with facts said to support the defence case.
It may well be that the conclusion of the Magistrate was a just one and I have wavered in my conclusion as to the correct disposition of this case; I am concerned that to allow this appeal might be thought to set the bar too low.
However, I conclude that the appellant has made out its appeal on the basis that the Magistrate failed to adopt the correct process of applying the law to a matrix of fact sufficiently delineated and found beyond reasonable doubt.
Having said that, I emphasise that I do not suggest that a correct application of the law to the facts in this case would necessarily lead to any particular conclusion in the present case, be it a verdict of guilty or not guilty. That is for a Magistrate to say after seeing and hearing the witnesses and with the advantage, (as the trial Magistrate had but I did not) of a view of the scene. If this charge is to proceed further, a retrial will be necessary.
I should also mention the following three further matters for the parties’ consideration.
The particular of aggravation
The first matter is that the complaint as here framed included a particular of aggravation that: “It is further alleged that the circumstances of aggravation are that serious injury or death was caused to a person.”
Because the Magistrate found that it was not proven that the respondent drove without due care, he was not required to address the separate question as to whether the circumstances of aggravation were established on the evidence. In the present case, it may be that one could not exclude the possibility that even though the respondent was driving without due care, the deceased may also have been driving in such a way that it cannot be proven that the serious injury or death was in fact caused by the driving of the respondent.[7] I am not in a position to determine that matter which was not addressed before me.
[7] Cf Police v Melisi (2010) 106 SASR 105, 112 per White J: "It is also possible, as the respondent submitted, that in the passages presently impugned by the appellant, the magistrate was addressing the aggravated element of the offence, and concluding that even if the respondent had been driving without due care, it had not been proven that the death of the deceased had been caused by that manner of driving. However, given my earlier conclusion, it is not necessary to express any final view about that submission."
The construction of s 45 of the Road Traffic Act 1961
The second matter is that the present offence is constituted by s 45 of the Road Traffic Act 1961 which provides as follows:
(1)A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
It might initially be thought that the word “without” first appearing governs the three following alternative sets of words, namely: “without due care”; “attention”; and “reasonable consideration for other persons using the road”. However, upon closer inspection and particularly having regard to the insertion of the second word “without”, I consider that the section is intended to be read as: A person must not drive a vehicle “without due care or attention” or “without reasonable consideration for other persons using the road”.

This is an important matter. It is usually raised in the context of a basal question as to whether a section of an Act creates a number of different offences or only one offence which may be committed in a number of different ways. In that context, one usually finds the prosecutor asserting the latter alternative and charging the whole of the wording of the section in the complaint with the defendant, on the other hand, arguing that that cannot be done because the section creates separate offences and that the prosecutor must therefore elect between them.
But ironically, what has happened here is that the prosecution has in fact charged only “due care” as the offence upon which it relies, thus appearing to accept that there is more than one offence here and to elect for that one offence.
As noted above, I would prefer to delineate two rather than three alternatives here. It is to be noted that such a delineation relies upon the word “or” being used in two different senses. This very feature points towards the real possibility that the word “or” second appearing is a true disjunctive and that the section does in fact create two different offences, one of “driving a vehicle without due care or attention” and the other of “driving a vehicle without reasonable consideration for other persons using the road”.
In any event, irrespective of how many offences are created, what is clear in the present case is that the prosecution elected not to charge “driving a vehicle without reasonable consideration for other persons using the road”. The respondent would no doubt submit that the prosecution case as presented at trial was really a case based upon an allegation that the respondent drove “without reasonable consideration for other persons using the road”, and yet the complaint did not contain that essential averment. The submission would continue that the phrase “driving without due care” must connote something other than “driving without reasonable consideration for other persons using the road” and here the matters usually relied upon to prove such a charge of driving without due care appear to be absent or have not been proven to be present.
The situation is here made worse for the prosecution by the fact that the time limit for laying a charge for an incident occurring on 18 October 2009 has long since passed. Obviously the present charge cannot now be amended so as to charge a different offence or to charge a valid charge for the first time. I briefly referred to some of the relevant authorities in a different but closely analogous context in Murphy v Police.[8] In any event, it would be unfair for the prosecution to have an opportunity to now present a different charge than originally presented.
[8] [2011] SASC 138, [76] to [83].
An order for a rehearing does not require that there be one
The final matter is that although I will make an order in the customary terms of “a rehearing”, that in no way is intended to suggest that in my view such a rehearing is either needed or desirable. It is the position that it will be for the complainant to decide whether justice requires a rehearing in all of the present circumstances. I have in mind the words of Doyle CJ in R v Edwards (No 2):[9]
[59]An order for a retrial leaves open to the Director of Public Prosecutions[10] the exercise of the power that he exercises in all cases, namely, to decide whether it is in the public interest that there should be a further trial. In a case like this, that is always a difficult decision. The Director can consider any matter relevant to the public interest, and in particular representations made to him. … it is important to understand that the Court’s order does not require that there be a retrial.
[9] [2009] SASC 233.
[10] Edwards was a trial for manslaughter conducted by the DPP on Information. In the present case it will be for the complainant to consider the matter.
Of course the present case is a fortiori to that of Edwards. There the defendant had been convicted, the order for a retrial resulting from a successful appeal against that conviction and no element of double jeopardy being present. Here, matters very obviously including double jeopardy, as well as the character of the respondent, his age, the impact of the proceedings upon him and other matters may all be taken into account when deciding whether a rehearing is necessary in all of the circumstances.
Orders
I make the following orders:
1The appeal is allowed.
2The order dismissing the complaint is set aside.
3The case is remitted for rehearing before a different Magistrate.