R v Brian Edson Joyce No. DCCRM-98-962 Judgment No. D47

[1999] SADC 47

R v Brian Edson Joyce
[1999] SADC 47

Judge Robertson
Criminal

1 Brian Edson Joyce (the "Accused") is charged with the offence of causing bodily harm by dangerous driving contrary to Section 19A of the Criminal Law Consolidation Act 1935 ("the Act"). The charge arises out of a collision which occurred at the intersection of Murray Street, Penrice Road and Old Kapunda Road, Nuriootpa on 22 October, 1997 in which a utility driven by the accused came into collision with a motor cycle being ridden by Mark Henry Power ("Mark Power"). As a result of the collision, Mark Power suffered injuries. It is alleged that the harm caused to Mark Power is grievous bodily harm within the meaning of Section 19A of the Act. The accused has pleaded not guilty to the charge.
2 It is for the Crown to prove each of the elements of the offence beyond reasonable doubt. The accused has raised the defence of honest and reasonable mistake. Such a defence is available in respect of the offence the subject of the charge. (See: Jiminez v The Queen (1992) 173 CLR 572 at 581-582). The onus on the Crown also requires it to disprove beyond reasonable doubt the defence of honest and reasonable mistake.
3 It is not contested that the accused was the driver of the utility which came into collision with the motor bike being driven by Mark Power. It is further not contested that the injuries sustained by Mark Power in that collision amount to grievous bodily harm within the meaning of Section 19A of the Act. I am satisfied beyond reasonable doubt that the accused was driving the motor vehicle at the time it collided with the motor cycle being driven by Mark Power and that as a result of the collision Mark Power suffered injuries which I am satisfied beyond reasonable doubt amount to grievous bodily harm. Except for the defence of honest and reasonable mistake, the only issue relating to the offence charged, is whether the motor vehicle being driven by the accused was being driven in a manner which was dangerous to the public.
4 The facts are contained within a relatively small compass.  The intersection consists of Murray Street which travels in approximately a north/south direction, Penrice Road which travels in an easterly direction from Murray Street and Old Kapunda Road which travels in a westerly direction from Murray Street on the opposite side of Penrice Road.  On the south east corner of the intersection was a "Stop" sign facing traffic which approached the intersection along Penrice Road travelling in a westerly direction.  The "Stop" sign was attached to a pole.  It was hexagonal in shape.  The word "Stop" was painted in white against a red background.  There was a white painted border around the sign.  There was another "Stop" sign on the opposite side of the intersection facing traffic travelling in an easterly direction along Old Kapunda Road towards Murray Street. 
5 Mark Power said in evidence that about 7.30 a.m. on the morning of the accident he was travelling in  approximately a southerly direction along Murray Street, riding his Harley Davidson motor bike.  He was wearing a black helmet, a black leather jacket and blue jeans.  His motor bike was black in colour.  Mr Power was riding his motor cycle to Orlando Wines where he works.  As he approached the intersection he saw a white utility close to the intersection on Penrice Road travelling in a westerly direction.  I find that at that time, Mr Power was travelling at between 50 and 60 kilometres per hour.  He said he assumed that the white utility was going to stop at the "Stop" sign.  Mr Power said that the utility failed to  stop and entered the intersection.  Mark Power said that he took evasive action by swerving to the right.    Unfortunately, the motor bike  collided with the utility and as a result of the collision Mr Power  was injured. 
6 There were other witnesses called by the Crown who either observed the moment of the collision or observed the events which unfolded immediately after.   I do not intend to refer specifically to that evidence.  It is not disputed by the accused that he proceeded into the intersection without stopping his motor vehicle.  It is also not disputed by the accused that shortly before his motor vehicle entered the intersection his gaze was focused directly in front of him.  There is evidence of estimates of  the speed of the accused’s utility at the time he entered the intersection, including evidence of the accused.  I find that at the time the utility entered the intersection it was travelling at a speed of  between 50 and 60 kilometres an hour.  The speed limit on Penrice Road and Murray Street was 60 kilometres per hour.  I also find  that the accused did not apply his brakes at any time prior to the collision.
7 Sergeant Hassell of the Major Crash Investigation Section of the Police investigated the scene of the accident at about 9.45a.m. on the morning of 22 October, 1997.  He offered his opinion regarding the position of the point of impact between the two vehicles.  From the point of impact identified by Sergeant Hassell and the evidence given by other witnesses who observed the collision it is clear that at the time the utility entered the intersection it was close to the centre line of the carriageway of Penrice Road.  Shortly before Penrice Road reaches Murray Street there is a painted white line on the southern side of the carriageway of Penrice Road which divides that side of the carriageway into two lanes.  I find that the accused was travelling in the northern lane near the centre line of the carriageway shortly before he entered the intersection.  This was not disputed by the accused.
8 Sergeant Hassell also took some photographs at the scene of the collision.  I find that these photographs were taken between 9.45 and 10.15 on that morning.  One of those photographs was taken in Penrice Road looking in a westerly direction at a distance of approximately 75 metres from the Murray Street intersection.  The "Stop" sign and the intersection are visible in the photograph.  Another photograph was taken with the photographer facing in the same direction but from a distance of only 25 metres from the intersection.  Once again the "Stop" sign and the intersection are visible in the photograph.  It was Sergeant Hassell’s evidence that both the photographs were taken from a position where he believed a driver of a motor vehicle would be positioned as the driver’s vehicle approached the intersection.  Sergeant Hassell also said on that morning he took up a position 160 metres to the east of the intersection in Penrice Road in a position where he believed a driver travelling west along Penrice Road would be positioned.  He said that from that position he observed the "Stop" sign. 
9 The accused gave evidence.  It  was not contended by the Crown that he was anything but an honest witness.  I hasten to add that the Crown did contend that the accused, in some aspects of his evidence, could not be relied upon.  I find that the accused did try to tell the truth when he gave his evidence.
10 The accused said that in  the early morning of Wednesday 22 October, 1997, he drove to Nuriootpa for the purpose of delivering some toilet parts to Hahn’s Transport for delivery to Sydney.  He was driving a white Toyota Hilux utility.  He had never been to the premises of Hahn’s Transport before.  He was given  directions which included a direction that on arriving in Nuriootpa he was to drive along  Murray Street until he came to Penrice Road which turned off Murray Street on the right.  His instructions were to turn into Penrice Road and continue driving along that road until he reached the premises of Hahn’s Transport. 
11 When he arrived in Nuriootpa the accused travelled in approximately a northerly direction along Murray Street.  At the intersection he turned right into Penrice Road.  At the time that he turned into Penrice Road he said he did not notice Old Kapunda Road on the opposite side of Murray Street to Penrice Road. On entering Penrice Road he drove in an easterly direction until he reached the premises of Hahn’s Transport.  He said that during that journey he did not cross any intersections.  After delivering the large carton containing the toilet parts to Hahn’s Transport he then drove the utility in a westerly direction along Penrice Road.
12 During his return along Penrice Road the accused put on his prescription sunglasses because the bright morning light was affecting his eyes.  As he approached the intersection, the accused was looking directly  in front of him. It was his intention to turn left at Murray Street for the purpose of taking the same route out of Nuriootpa as the route he had taken on entering the town.  The accused said it was his belief that Penrice Road and Murray Street formed a T-Junction.  The accused said he was focusing on Old Kapunda Road assuming it to be the continuation of Penrice Road.   He said that  he made that assumption because of his expectation that Murray Street and Penrice Road formed a T-Junction.     A short distance before the intersection the accused said that he observed  the "Stop" sign through the left hand section of the windscreen of his motor vehicle.  He said that he was closer to the intersection than the 75 metre point, where Sergeant Hassell took a photograph, when he first observed the "Stop" sign but he could not say how much closer. The accused  said that before he had time to react, his motor vehicle had entered the intersection and came into collision with the motor cycle being ridden by Mark Power. 
13 The accused produced a photograph which was admitted in evidence which he took pointing in the direction of the intersection.  He took this photograph from a point less than 160 metres but greater than 75 metres from the intersection.  It was the accused’s evidence that he took the photograph through the windscreen of his motor vehicle at a position on the road at which he considered his vehicle was positioned  as it approached the intersection on the morning of the collision.  This photograph was taken some time before 16 January, 1998.  The photograph depicts the "Stop" sign partially obscured by other signs in front of it.  Furthermore, it is not possible to identify the intersection in the photograph.    I accept the accused’s evidence that the position from where he took the photograph was the approximate position of his utility on the carriageway at that point as it approached the intersection on that morning.   I also find that at that point on the road the "Stop" sign was partially obscured and that it is not possible to observe the intersection.
14 The accused produced other photographs which were admitted in evidence.    These were taken by him on 18 January, 1999 between 8.30 and 8.45 in the morning.  The photographs were taken on Penrice Road with the camera pointed in a westerly direction towards the intersection.  The photographs depict shadows from poplar  trees cast over the northern half of the intersection and a portion of the northern part of Murray Street immediately prior to the intersection.
15 The accused also tendered a report from Mr Roger Clay, a Reader of Physics at the University of Adelaide, in which Mr Clay furnished an opinion regarding the state of the shadows from the poplar trees on the morning of 22 January, 1997.  As a result of his opinion I find that at about 7.30 to 7.35 a.m. on 22 January 1997 the poplar trees cast a shadow over the northern half of the intersection and over the northern portion of Murray Street leading to the intersection.
16 The accused also produced a survey which indicated that from a point 120 metres west of the intersection  Penrice Road was 54 centimetres higher than a point at approximately the centre of the intersection.
17 The test to be applied in determining whether the driving of an accused person is driving in a manner dangerous to the public have been expressed in many decisions over the years.  The test is objective in nature.  Whether the accused failed to appreciate that he was driving in such a manner is not a relevant consideration.  The test is conveniently laid out in the decision of King CJ in Kamleh v The Queen (1990) 51 A.Crim R at 435 at 436-437.
"The law relating to these crimes is well settled in this State. The leading authority is Mayne (1975) 11 SASR 583 in which the law as stated in a summing up by Napier CJ in Duncan (reported at 592 in a note to the report of Mayne) was approved. The objective nature of the test as to what constitutes driving in a manner dangerous to the public as laid down in those cases was re-affirmed in Cornish (1988) 48 SASR 520 at 522; 33 A Crim R 91 at 93:
‘The law is quite clear that the test as to  manner of driving upon a charge of this kind is an objective test.  The question is whether in the judgment ofthe jury the manner in which the accused has driven, viewed objectively, amounts to driving in a manner dangerous to the public’
See also Giorgianni (1985) 156 CLR 473 at 479, 490, 499; 16 A Crim R 163 at 167, 175, 182. The question is not whether the accused intended to drive, or appreciated that he was driving, in a manner dangerous to the public but whether, in the judgment of the jury, a reasonable person in the situation of the driver would have appreciated that he was driving in a manner dangerous to the public.
The crime is committed by the act of driving in a manner which any reasonable person in the situation of the driver would recognise as dangerous in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public. Ordinary risks of the road include those arising from the sort of faulty driving and lack of care which must be expected, due to human frailty, from time to time, from the ordinary driver. The sort of driving which constitutes this crime is more serious than that. It is driving which a reasonable person in the situation of the driver would understand to be such as would give rise to a serious risk of injury to members of the public going beyond the ordinary risks of the road. It is driving which is therefore fit to be regarded as a serious crime. If the driving, although negligent, does not go beyond what might fairly be regarded as an ordinary risk of the road, a crime of causing death or bodily injury by dangerous driving is not committed but the driver is guilty of driving without due care or attention contrary to s 45 of the Road Traffic Act 1961 (SA), a verdict of guilty of which offence is open to the jury by virtue of s 19b(2) of the Criminal Law Consolidation Act 1935 (SA)."
18 The former Chief Justice again enunciated the test in Kroon v The Queen (1991) 55 SASR 476 at 477-478:-
"It is well established that the question whether a vehicle is driven in a manner dangerous to the public for the purpose of the offences created by s 19a of the Criminal Law Consolidation Act 1935 must be answered by reference to an objective standard and irrespective of whether the accused intended to drive dangerously or appreciated that he was doing so: see R v Coventry (1938) 59 CLR 633 AT 637-638, 639; McBride v The Queen (1966) 115 CLR 44 at 49-50, 55; Georgianni v The Queen (1985) 156 CLR 473 at 479, 490, 499; Cornish v The Queen (1988) 48 SASR 520. The character of the driving is tested not by reference to whether the danger to the public involved in the driving was appreciated by the accused but to whether he ought to have appreciated the danger; or, to put it another way, whether a reasonable person in the situation of the accused would have appreciated the danger: see R v Mayne (1975) 11 SASR 583, per Bray CJ at 585; R v Duncan (1953) 11 SASR 592 at 594."
19 In the High Court case of McBride v The Queen (1965-1966) 115 CLR 44 at 50 Barwick CJ pointed out that the quality of driving as being dangerous to the public does not depend upon the resulting damage. His Honour said at page 50:-
"This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage through 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.
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."
20 Counsel for the accused, Mr Abbott, submitted that in applying the objective test the words "... a reasonable person in the situation of the driver..."  contained in the observations of King CJ in Kemlah means that matters personal to the accused are to be considered in applying the objective test.    Counsel said that in this case, when considering the reasonable person in the situation of the driver, there must be taken into account the belief of the accused that Penrice Road ended at a T-Junction.  In other words, that belief and the fact that it led the accused to the assumption that Old Kapunda Road was the continuation of Penrice Road not bisected by Murray Street need to be taken into account in applying the "reasonable person driver" test to determine whether the accused was driving in a manner which was dangerous to the public.  The only qualification that counsel said was needed before such belief was to be taken into account for the purpose of the "reasonable person driver" was that such belief was a reasonable one.
21 It is clear from the "sleep at the wheel" cases that some matters which may be described as "personal" to the accused driver are relevant when considering the objective test (see: Kroon (supra) and Jiminez (supra)).  Matters such as the period of time the accused experienced drowsiness, the period of time for which the accused had been driving and the accused’s state of health have been held to be relevant to the objective test.  Whilst factors such as these are personal to the driver their nature is not such that it can be said that they introduce a subjective element into the objective test.  Expressed another way they do not dilute the objective nature of the test.  However, in my opinion the introduction of the beliefs of the accused as I have described earlier introduces an impermissible subjective element into the objective test.  It seems to me that this is highlighted by the fact that counsel needed to introduce the qualification of reasonableness to cloak the submission with the character of legitimacy.  If such a qualification were not introduced then the submission would clearly be seen to be fallacious as the logical conclusion would be that any  beliefs of a driver however extreme would need to be considered.  In my opinion, the beliefs of the accused should not be taken into account in considering the objective test for  determining whether the accused was driving in a manner dangerous to the public.  The same comment applies to the personal thoughts that the accused was experiencing as he drove along Penrice Road towards the intersection.
22 It is the Crown’s case that the accused failed to keep a proper lookout and as a result failed to observe the "Stop" sign until it was too late.   Furthermore, that the accused’s defective lookout caused him to fail to observe the intersection.  That is the basis upon which the Crown asserts that the accused is guilty of driving in a manner dangerous to the public.  It was submitted by Ms Woithe, Counsel for the Crown, that in applying the objective test that "the reasonable person driver" would have observed the "Stop" sign and intersection when the accused’s vehicle was at least 75 metres from the intersection.    It was her submission that "the reasonable person driver" would have observed the "Stop" sign and intersection at a point further back in distance than 75 metres from the intersection but if not then those observations would have been made at the 75 metre point.  Accordingly says the Crown, as a result of the accused failing to observe the "Stop" sign and failing to observe the intersection until he was closer to the intersection than the 75 metre point,  he is guilty of the offence charged. 

23 In considering whether the accused is guilty of the offence it is my opinion it is relevant that prior to the day of the collision the accused had not driven along Penrice Road before. I also take into account that he had never driven in a westerly direction along Penrice Road towards the intersection of Murray Street prior to this time. The accused was unfamiliar with the area and the intersection. He was aware that there was no intersection along Penrice Road between Murray Street and Hahn’s Transport. I do not consider this lack of familiarity should have led him to be more careful in the sense described by White J in The Queen v Boll (1983) 33 SASR 321 at 323. I find that from the position the accused was driving on the carriageway that at the point where the accused took the photograph the "Stop" sign was partially obscured. There is no evidence which would indicate that it was partially obscured at points further along the road. However, I note that the reason for the partial obscurity in the photograph is a result of signs in the area immediately in front of the "Stop" sign. In view of the position of those signs the "Stop" sign could have been partially obscured at some other points closer to the intersection depending upon the vehicle’s position on the road. I find that on the day of the collision the intersection could not be identified from a distance of 160 metres. The difficulty in observing the intersection on that day was increased by the presence of shadows over the northern section of the intersection. I am satisfied beyond reasonable doubt that from a point approximately 75 metres from the intersection the "Stop" sign could have been plainly seen. However it is a reasonable possibility that on that morning a driver unfamiliar with the intersection may not have instantly recognised the physical presence of the intersection at that point. The presence of the "Stop" sign would have alerted the driver to the presence of a cross road. It is clear that the accused’s failure to observe the "Stop" sign was brought about by his inattention or failure to keep a proper lookout. It was this failure to keep a proper lookout which caused the utility to enter the intersection without stopping and to collide with the motorbike ridden by Mark Power.
24 It is beyond argument that in some circumstances inattention or failure to keep a proper lookout when driving amounts to driving in a manner dangerous to the public.  As I have said the accused’s lookout was defective.  However in applying the test to which I referred earlier I am not satisfied beyond reasonable doubt that the accused’s driving was of such a nature that it can be classified as driving in a manner dangerous to the public.  I am not satisfied beyond reasonable doubt that "... any reasonable person in the situation of the driver would recognise [the driving] as dangerous in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public" (per King CJ in Kamleh  at  437).  The accused should have been more vigilant.  His lookout was poor.  However, it was not driving in a manner dangerous to the public.  It was conduct amounting to driving without due care.  Accordingly I find the accused not guilty of the charge of causing bodily harm by dangerous driving.
25 Having found the accused is not guilty of that charge it is unnecessary to consider whether the Crown has disproved beyond reasonable doubt the defence of honest and reasonable mistake.  However, as I said, I am satisfied beyond reasonable doubt that the accused’s conduct amounts to driving without due care.  In those circumstances it is therefore necessary to consider whether the defence is available to such a charge, and if so,  whether the Crown has discharged its onus of disproving the defence.
26 Counsel for the accused has advised that his researches have failed to reveal any decision which indicates whether the defence is available to a charge of driving without due care. Section 45 of the Road Traffic Act 1961 provides:-
"A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road."
27 It is clear that mens rea is not an ingredient of the offence.  The question is whether the offence is of such a nature that it excludes  the defence of honest and reasonable mistake of fact.
28 In Jiminez  (supra) the High Court discussed the defence as it applied to the offence of driving in a manner dangerous to the public.  At pages 581-582 the Majority stated:
"A statutory offence which imposes absolute liability is one which, in addition to excluding the requirement of mens rea, also excludes a defence of honest and reasonable mistake (33).  In a well-known passage I Proudman v Dayman (34), Dixon J. drew a distinction between mens rea as an ingredient of an offence and an honest and reasonable belief in a state of facts which, if they existed, would make a defendant’s act innocent.  If honest and reasonable mistake is not excluded in the case of a statutory offence, it will afford an excuse for what would otherwise be an offence, although the burden of establishing the excuse will in the first place be upon the defendant.  The  burden on the defendant is evidentiary only, and the prosecution retains the burden of proving guilt by establishing beyond reasonable doubt that the defendant did not honestly believe on reasonable grounds in the existence of facts which, in the circumstances, would take his act outside the operation of the statute (35).  The majority of the Court in Reg. v Coventry recognized that the defence of honest and reasonable mistake was available to a charge under the equivalent of s. 52A in South Australia.  In that case the majority said (36):
"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’ described the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence."
At page 583 the Majority made the further observation:-

"Driving in a manner dangerous to the public is at once both the offence and, if it is  relevant, the fault, but it will be a defence to establish an honest and reasonable mistake as to facts which if true would exculpate the driver.  Perhaps the most obvious example is where a driver is unaware of the defective condition of his vehicle and believes it upon reasonable grounds to be in good working order.  And the same issue is raised when, in a case like the present where the dangerous manner of driving is said to consist in the likelihood of going to sleep, a driver claims that he had no warning of the onset of sleep."

1. In my opinion there is nothing in the nature of the offence to suggest that the defence of honest and reasonable mistake of fact should be excluded. Taking up the High Court’s example in Jiminez of a driver unaware of a defective condition of his motor vehicle, it seems to me that driving a defective motor vehicle may be an offence under Section 45 of the Road Traffic Act and therefore, in principle and logic there is no reason why the defence is not available to a charge under that Section.
   30 As Dixon J said in Proudman v Dayman (1941) 67 CLR 536 at 540:
   "There may be no longer any presumption that mens rea, in the sense of a  specific state of mind ... is an ingredient in an offence created by a modern statute ... but to concede that ... does not mean that the rule that honest and  reasonable mistake is prima facie admissible has lost its application also."
   31 It seems to me that if the defence is available in relation to a charge of driving in a manner dangerous to the public then there appears to be no sufficient reason for treating the presumption as rebutted in relation to Section 45 of the Road Traffic Act.
   32 I now turn to consider the defence.  Counsel for the accused articulated the mistake of fact in two ways.  At first he said that Mr Joyce believed he was on a straight stretch of road which was not bisected by an intersection at the place where Murray Street bisects Penrice Road and Old Kapunda Road.  Mr Abbott said there was fall back position which he said was the preferred formulation of the mistake of fact.  He said that it was the accused’s belief that he had no obligation to give way at the intersection of Penrice Road, Old Kapunda Road and Murray Street.  Counsel said that this mistake of fact arose from his belief that at the point where Penrice Road joins Murray Street was a T-Junction.
   33 In Proudman (supra) Dixon J  stated:
   "The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of the state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did believe."
   34 In my opinion the point raised in this case can be answered shortly.  The belief relied upon by the accused is not reasonable one.  It was brought about by the accused’s failure to keep a proper lookout.  If he kept a proper lookout then the accused would have observed the "Stop" sign at the 75 metre point from the intersection.  If the accused had observed the sign then this would have alerted him to a cross road ahead.  He cannot now be heard to say that because he failed to observe the sign due to his inattention that his belief was a reasonable one.  It follows that I am satisfied beyond reasonable doubt that the Crown has disproved the defence of honest and reasonable mistake of fact.

2. Accordingly, I am satisfied beyond reasonable doubt that the accused is guilty of driving without due care contrary to Section 45 of the Road Traffic Act 1961.