RICHARDSON v Police - [2012] SASC 20

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RICHARDSON v POLICE
[2012] SASC 20
Judgment of The Honourable Justice Kelly
17 February 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
Appeal against conviction - appellant found guilty of one count of aggravated driving without due care contrary to s 45(3) of the Road Traffic Act 1961 (SA) - aggravation was caused by the serious harm suffered by the victim - appellant appealed on the grounds that the Magistrate erred in finding the charge proved against the appellant in light of evidence which suggested lighting on victim’s tractor was defective - whether the Magistrate gave due weight to the evidence - whether the Magistrate correctly assessed the totality of the evidence.
Held: appeal dismissed - Magistrate correctly assessed all the evidence before the court and gave due weight and consideration to the evidence of the appellant - appellant’s driving not to the standard required of a reasonably prudent driver in the circumstances - Magistrate’s findings justified on the evidence - no basis for appellate court to interfere.
Road Traffic Act 1961 (SA) s 45(3), referred to.
Police v Melisi (2010) 106 SASR 105, applied.

RICHARDSON v POLICE
[2012] SASC 20
Magistrates Appeal: Criminal
KELLY J.

On 13 March 2008 a Prime Mover towing two trailers driven by the appellant collided with the rear of a tractor towing a grape harvest tote bin trailer driven by Mr Honey. The collision occurred on a section of the Sturt Highway near Kingston-on-Murray. Mr Honey suffered severe head and abdominal injuries which resulted in permanent cognitive and motor dysfunction.
The appellant was charged with driving without due care aggravated by the fact that Mr Honey suffered serious harm. After a trial the Magistrate convicted the appellant. He now appeals that conviction.
The issue on appeal is whether the Magistrate was correct in finding the charge of aggravated due care proved beyond reasonable doubt in light of the Magistrate’s factual findings, in particular that the prosecution failed to prove beyond reasonable doubt that all of the lights on Mr Honey’s tractor and tote bin were illuminated. It was submitted by the appellant that in these circumstances the evidence was not capable of satisfying the Court beyond reasonable doubt. Specifically, the appellant submitted that the Magistrate was wrong to conclude that:
·had the appellant driven with headlights on high beam he would have seen the tractor in time to avoid the collision;
·the appellant’s speed was excessive given the characteristics of the road and dimensions and the weight of his vehicle;
·the appellant did not brake at all; and
·the appellant failed to guard against a foreseeable risk.
Factual Background
Before discussing the appellant’s argument it is helpful to set out the relevant facts.
The collision occurred at approximately 12.45 am on 13 March 2008. The appellant was driving…

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 RICHARDSON v Police

Details

AGLC: RICHARDSON v Police [2012] SASC 20
Case: [2012] SASC 20
Decision Date: 17 February 2012

CaseChat Overview and Summary

In the matter of Richardson v Police, the appellant sought to appeal against his conviction for aggravated driving without due care and attention under section 45(3) of the Road Traffic Act 1961 (SA). The appeal hinged on the contention that the Magistrate erred in finding the charge proved against the appellant given evidence suggesting that the lighting on the victim’s tractor was defective. The appellant argued that the Magistrate did not give sufficient weight to this evidence and did not correctly assess the totality of the evidence. The central legal issues for the court to determine were whether the Magistrate correctly assessed the evidence and whether the findings of fact were justified.

The Supreme Court of South Australia found that the Magistrate had correctly assessed all the evidence presented and gave due weight to the appellant’s evidence. The court held that the appellant’s driving did not meet the standard required of a reasonably prudent driver in the circumstances. The Magistrate’s findings were justified based on the evidence, and there was no basis for the appellate court to interfere. The court found that had the appellant driven with headlights on high beam, he would have seen the tractor in time to avoid the collision. Additionally, the court determined that the appellant’s speed was excessive given the road characteristics, and he failed to brake at all, thereby failing to guard against a foreseeable risk.

The Supreme Court dismissed the appeal, affirming the Magistrate’s findings. The court concluded that the appellant’s driving was not to the standard required of a reasonably prudent driver in the circumstances, and thus the appeal was unsuccessful. No further orders were made by the court.

Orders

Orders of the court

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Background

Background to the litigation

The issue on appeal is whether the Magistrate was correct in finding the charge of aggravated due care proved beyond reasonable doubt in light of the Magistrate’s factual findings, in particular that the prosecution failed to prove beyond reasonable doubt that all of the lights on Mr Honey’s tractor and tote bin were illuminated. It was submitted by the appellant that in these circumstances the evidence was not capable of satisfying the Court beyond reasonable doubt. Specifically, the appellant submitted that the Magistrate was wrong to conclude that:·had the appellant driven with headlights on high beam he would have seen the tractor in time to avoid the collision;·the appellant’s speed was excessive given the characteristics of the road and dimensions and the weight of his vehicle;·the appellant did not brake at all; and·the appellant failed to guard against a foreseeable risk. Factual Background Before discussing the appellant’s argument it is helpful to set out the relevant facts. The collision occurred at approximately 12.45 am on 13 March 2008. The appellant was driving a Kenworth Prime Mover in a westerly direction on a section of the Sturt Highway near Kingston-on-Murray. Mr Honey had been driving a tractor towing a grape harvesting tote bin in the same direction ahead of the appellant’s vehicle. The appellant crashed into the rear of the tractor driven by Mr Honey. The speed limit on that section of the highway was 110 kilometres per hour, however the appellant was permitted to drive no faster than 100 kilometres per hour given the nature of the vehicle he was driving. The weather conditions were fine although it was a dark night. The road leading up to the collision is significant to understand how the crash occurred. Just past Barmera travelling west there is a causeway that leads up to a bridge which crosses the Murray River. The causeway itself is wide but winding and carries only a single lane of traffic in both directions. The bitumen road surface narrows as it leads up to the bridge and there is no dirt shoulder, verge or run‑off area on the bridge. The bridge also allows for one lane of traffic. There is a raised concrete path and gutter on the outer edge of the lanes across the bridge. From the western end of the bridge the road starts a steady incline which gradually levels out approximately 100 metres from the point at which the collision occurred. At the top of the incline the road begins a sweeping right hand bend. After the hearing, by consent, a further declaration was tendered from Brevet Sergeant Mark Fulcher who returned to the scene of the collision and measured some distances which had not been previously apparent from material tendered at trial. Both counsel invited the Court to use these measurements to better understand the evidence. I am indebted to the parties for the assistance provided by those further measurements as they provide an accurate context in which to assess, in particular, the evidence given by the appellant about his driving on the relevant section of the highway, and the view ahead at various vantage points as he crossed the bridge. The bridge itself is 246 metres long. The distance from the eastern side of the bridge to the approximate point of the collision is about 856 metres.

Evidence

Evidence Before The Court

On appeal this Court is required to reconsider all of the evidence before the Magistrate and to make up its own mind after giving due weight to the advantage the Magistrate had in seeing and hearing the witnesses and, after giving due weight to the Magistrate’s findings on credibility, which depended wholly or in part on the demeanour of the witness. Analysis of the Evidence The evidence given by the appellant before the Magistrate was important. It established that he knew the road well. In particular he was aware of the lie of the road ahead and the bend to the right. There was no dispute that a driver of a vehicle approaching the bridge from an easterly direction has an unobstructed line of sight for a distance of approximately 1000 metres. This was an area of the highway in which the appellant acknowledged that caution was needed. As he came off the bridge two other vehicles, the bread van and the white Falcon, passed him travelling in the opposite direction. He opted to leave his lights on low beam as he saw the throw of lights of a vehicle approaching but not yet around the bend ahead. He estimated the distance of the approaching vehicle to be about one kilometre away. He acknowledged that he could only see 50-60 metres ahead of the road with low beam. He acknowledged that that section of the road can get a bit tricky particularly where the guard rails are positioned. It was very necessary to be careful about oncoming traffic. The appellant also acknowledged that he was travelling on a section of the road where he knew, due to the configuration of the road, its surrounds and the presence of other vehicles, that it would be impossible to change course if confronted with an emergency. The appellant was quite vague about the timing of the warning which he heard over the UHF radio, however he conceded that he had heard a warning about a poorly lit convoy earlier that night. Notwithstanding his vagueness as to the timing of the warning it was open to the Magistrate on the basis of Mr O’Reily’s evidence to conclude that the warning he received was only a few minutes before the accident. Furthermore, the appellant acknowledged that he was aware of the potential presence in the area of convoys during grape harvesting time as he had encountered poorly lit convoys in the past. He acknowledged that he did see something on the road ahead before he switched on his high beam however he did not immediately brake at that time because it could have been a kangaroo hopping over the road. The appellant explained why he would not normally stop for a kangaroo or other animal hopping over the road. He said truck drivers do not stop or brake for kangaroos as it is too dangerous. One of the appellant’s complaints related to the finding by the Magistrate that the appellant failed to brake at all prior to the collision. This finding was said to be found in [66]:The explanation as to why the defendant did not brake before the collision is probably due to his usual reaction to wildlife being present on the road as outlined in these questions I asked.

Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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