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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Smith

Details

AGLC: Police v Smith [2012] SASC 114
Case: [2012] SASC 114
Decision Date: 6 July 2012

CaseChat Overview and Summary

The matter in the Supreme Court of South Australia involved an appeal against a decision made by a Magistrate. The respondent, Mr Smith, was charged with driving without due care and attention or reasonable consideration for other road users. The incident occurred on an unsealed country road between Greenhill and Flaxley, at a sharp 63-degree bend with poor visibility due to vegetation and a narrow road surface. Mr Smith was driving a Nissan utility with a double axle trailer, while the deceased, Mr McNamara, was riding a motorcycle. The collision occurred when Mr McNamara struck the off-side wheel arch of the trailer. The primary legal issue was whether Mr Smith's driving fell short of the care required in the circumstances. The Magistrate found that Mr Smith was not at fault and acquitted him, leading to the prosecution's appeal.

The court was required to determine whether Mr Smith's driving was negligent and if the charge against him was proven beyond reasonable doubt. The Magistrate held that both Mr Smith and Mr McNamara were competing for space on the narrow road, and Mr Smith could not be fairly criticised for his actions. The court examined the evidence regarding the road conditions, the visibility, and the actions of both drivers leading up to the collision. The Magistrate concluded that the incident was a tragic misadventure and not a result of negligence on Mr Smith's part. The appeal hinged on whether the Magistrate's decision was correct and whether the prosecution had proven the charge against Mr Smith.

The Supreme Court found that the Magistrate's decision was well-reasoned and based on the evidence presented. The court held that the road conditions, including the narrow road surface, poor visibility, and the default speed limit, contributed to the tragic incident. The court found that Mr Smith's driving did not fall short of the care required in the circumstances, and the charge against him was not proven beyond reasonable doubt. The appeal was dismissed, and the acquittal of Mr Smith was upheld. The court emphasised the importance of considering the specific circumstances of each case and the duty of drivers to exercise reasonable care and attention on the road.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J

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 18th 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

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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