Savill v Cruickshank
[2002] WASCA 182
•27 JUNE 2002
SAVILL -v- CRUICKSHANK [2002] WASCA 182
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 182 | |
| Case No: | SJA:1090/2001 | 12 JUNE 2002 | |
| Coram: | WHITE AUJ | 27/06/02 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CRAIG ROYSTON SAVILL JAY ROBERT CRUICKSHANK |
Catchwords: | Appeal against conviction on charge of dangerous driving Whether Magistrate's published reasons adequate Whether finding of guilt unreasonable Whether onus of proof was reversed Turns on own facts |
Legislation: | Nil |
Case References: | Garrett v Nicholson (1999) 21 WAR 226 Nevermann (1989) 43 A Crim R 347 Hedge v Thurston [2001] WASCA 43 Jiminez v R (1992) 173 CLR 572 Kaighan v R (1990) 11 MVR 119 M v The Queen (1994) 181 CLR 487 Mancini v Director of Public Prosecutions [1942] 1 AC 11 McBride v R (1996) 115 CLR 44 Morton v Bevis (1993) 19 MVR 181 R v Mullen (1938) 59 CLR 124 Rasoolifard v Nicol [2001] WASC 142 Smith v R [1976] WAR 92 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
JAY ROBERT CRUICKSHANK
Respondent
Catchwords:
Appeal against conviction on charge of dangerous driving - Whether Magistrate's published reasons adequate - Whether finding of guilt unreasonable - Whether onus of proof was reversed - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr B Hanbury
Respondent : Ms L E Christian
Solicitors:
Appellant : Beau Hanbury
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Garrett v Nicholson (1999) 21 WAR 226
Nevermann (1989) 43 A Crim R 347
Case(s) also cited:
Hedge v Thurston [2001] WASCA 43
Jiminez v R (1992) 173 CLR 572
Kaighan v R (1990) 11 MVR 119
M v The Queen (1994) 181 CLR 487
Mancini v Director of Public Prosecutions [1942] 1 AC 11
McBride v R (1996) 115 CLR 44
Morton v Bevis (1993) 19 MVR 181
R v Mullen (1938) 59 CLR 124
Rasoolifard v Nicol [2001] WASC 142
Smith v R [1976] WAR 92
(Page 3)
1 WHITE AUJ: This is an appeal against the decision of his Worship, Mr R H Burton SM on 15 March 2001, convicting the appellant of dangerous driving. The grounds of appeal are:
1. The learned Magistrate made an error of law in that he did not give sufficient reasons for his decision;
2. The learned Magistrate erred in fact and in law in that his finding of guilt was unreasonable having regard to the evidence;
3. The learned Magistrate erred in law in that he reversed the onus of proof.
2 The trial of the appellant took place on 13 March 2001 and on 15 March 2001, his Worship delivered the following reasons for decision:
"HIS WORSHIP: Sit down Mr Savill. This comes back for a decision by me - - sit down. The defendant is charged on the 12th of January 2001 at Wattle Grove he wilfully drove a motor vehicle registered number 1ADT 764 on Welshpool Road in a manner that having regard to all the circumstances inherently dangerous. What I understand to be inherently dangerous means of itself. The driving must be wilful. The background is it's early evening, very busy intersection, lots of vehicles, it's fine and dry. A police officer is stationary on a motorcycle, sees the defendant on an intersecting road, to his left, run - - he alleges run an amber light - - an amber right turn arrow from a slip lane at about 50 kilometres per hour, he assesses, several cars had gone through the arrow before the defendant turned. We don't know whether that was on a green or an amber arrow.
The defendant's car skidded to the right, corrected, to the left, and then mounted a kerb on the left-hand side of the road. The vehicle is a 5 litre apparently, which I imagine is a powerful vehicle. The defendant's been driving for 6 years. The car had bald tyres on the two back wheels. The defendant says he was doing about 40 kilometres, lost control, backed off - - backed off the speed, corrected and then found himself off the road.
Much of the evidence - - much was made of whether the constable could see the amber turning arrow. As interesting as that may be, I don't think it's relevant. The defendant, or his father, says that there was an oil - - there was oil on the road. I come to the conclusion that that's not been really established.
(Page 4)
- There's something there, but I don't know what it is. It's - - it could be - - there's certainly something there.
The camber on the road would make it more difficult to control the vehicle as it goes through this right turn manoeuvre. I've got to assess the evidence of the police constable and the defendant, his witnesses who gave evidence before me in the witness box. I believe that the defendant increased speed to go through the amber light, intended to speed up to get through the intersection. I believe the police constable that what he saw was dangerous, as the defendant could lose control, and the question then is - - the defendant could lose control and then cause danger to the other people there.
Has the defendant raised a doubt? I say no. What he did was he could see - - what he did was he could see was objectively and subjectively it could be dangerous, if he lost control of the vehicle. I find that it's dangerous to the public and accordingly to me, quoting WASC, West Australian Supreme Court 43, 2001, it's the case of Hedge and Thurston, which came from this court, on page 8 of that, it says:
'For driving to be dangerous it must in reality and speculative be actually or potentially dangerous to the public or to another person',
that's in the middle of page 8. I come to the conclusion that it's not inherently dangerous, it would require more than that, it would need more speed to be inherently dangerous or erratic driving through the intersection, or if he rushed around the corner, that would be a - - fast around the corner, that would help to constitute inherently dangerous.
It's not been proved beyond reasonable doubt it was inherently dangerous. It is a lesser charge of being found guilty of being dangerous to the public, dangerous to the public and I come to the conclusion that a charge of inherently dangerous is a line ball type of decision. It's a lesser offence. Yes, that's a sergeant, that's a conviction for dangerous."
3 The appellant summarised the background to this appeal as follows:
"1. The Appellant was charged with Wilfully Driving a Motor Vehicle on a road in a manner that was having
(Page 5)
- regard to all of the circumstances inherently dangerous, contrary to section 60(1) of the Road Traffic Act (WA) 1974.
- 2. He was convicted by the Learned Magistrate of the lesser offence of Dangerous Driving under section 61 of the said Act.
3. The basis of the Learned Magistrate's decision to convict the Appellant of the lesser offence was (transcript page 84, paragraph 4) was 'I believe that the defendant increased speed to go through the amber light, intended to speed up to get through the intersection. I believe the Police Constable that what he saw was dangerous, as the defendant could lose control, and the question then is – that the defendant could lose control and then cause danger to the other people there."
4 I shall now deal in turn with each of the three grounds of appeal.
Ground One
5 In respect of ground one – "the Learned Magistrate erred in law in that he did not give sufficient reasons for his decision", the appellant submitted that:
"4. (a) There were no findings made or reasons given as to what speed the vehicle was travelling at the time it entered the intersection, or going through the intersection or as to why the driving at that speed was found to be dangerous to the public or any person.
(b) The Appellant had given evidence that as he approached the intersection the light turned amber but that he 'had plenty of time to get through the lights' and that he was not travelling at excessive speed. The only prosecution witness, Constable Cruickshank, had given evidence that the vehicle had been travelling at an estimate of 50 kilometres per hour (p.12, paragraph 1). The Learned Magistrate failed to make any findings in this regard, other than to state that he accepted that what the Police Constable had seen was dangerous.
(Page 6)
- (c) The Learned Magistrate accepted that there was some substance on the road, yet failed to comment in his reasons as to whether or not he accepted that this may have contributed towards the accident.
(d) The Learned Magistrate appeared to accept that there was a change in camber on the road, yet failed to comment in his reasons as to whether or not he accepted that this may have contributed towards the accident.
(e) The Learned Magistrate failed to give reasons as to whether or not the fact that the Appellant was driving a powerful motor vehicle may have contributed to the accident.
- 5. It is submitted that where there is a statutory right of appeal sufficient judicial reasons should be given to enable the parties to avail themselves of the right to appeal (see cases on the attached 'List of Authorities'). It is submitted that the reasons given in the present case are so inconclusive that the reasoning of the Magistrate for convicting the Appellant is not clear."
6 It was said in Garrett v Nicholson (1999) 21 WAR 226 that the reasons of a magistrate must be "revealed to such an extent as will enable an appellate court to consider and determine whether or not the judgment is erroneous." It is not necessary for the reasons of a Magistrate to deal with all aspects of the evidence.
7 As was pointed out by Malcolm CJ in Nevermann (1989) 43 A Crim R 347 at 350, it would not be practical in a busy court such as the Court of Petty Sessions to impose a requirement in every case for a full or detailed statement of reasons to be given. To require that in every case would cause delays in the administration of justice. The reasons may be stated shortly, without being developed in any detail.
8 The appellant complains in Ground One that the learned Magistrate made no findings as to the speed at which the appellant was travelling at the time he lost control of his vehicle.
9 The appellant had given evidence that as he approached the intersection the light turned amber but that he had plenty of time to go through the lights. That evidence was inconsistent with the evidence of First Class Constable Cruickshank who said that the lights changed to red as the appellant entered the intersection. It is apparent that his Worship
(Page 7)
- accepted that evidence in preference to the evidence of the appellant on this point.
10 The learned Magistrate found that the appellant increased speed to go through the intersection, that his car skidded to the right, was corrected, moved to the left and then mounted a kerb on the left-hand side of the road. Constable Cruickshank said in evidence:
"And I observed the vehicle to accelerate heavily, both rear wheels of the vehicle began to spin, emitting a loud squealing noise and also causing a lot of smoke to come off the rear tyres."
11 While his Worship did not make any express finding as to the speed at which the appellant was travelling, the evidence indicated that he was travelling at a speed between 40 and 50 kilometres an hour. The appellant said he was travelling at 40 kilometres an hour or perhaps 45 and the Police witness estimated his speed at 50 kilometres an hour. It is the fact that the appellant lost control of his vehicle during the negotiation of the intersection. His Worship must, I think, necessarily have concluded that the appellant was travelling in a manner that did not enable him to retain control of his vehicle when turning into the intersection. His Worship's finding (AB84) in this regard was:
"I believe the police constable that what he saw was dangerous, as the defendant could lose control, and the question then is - - the defendant could lose control and then cause danger to the other people there."
12 As the respondent pointed out in his submissions:
"The learned Magistrate was not required to make a finding as to the speed of the Appellant's vehicle given that the manner of driving he identified as dangerous was not the speed of the vehicle per se but the heavy acceleration into a right hand turn.
In any event, there was little discrepancy in the evidence in relation to the Appellant's speed. The Respondent's evidence was that the Appellant was travelling at about 50 km per hour (AB12). The Appellant admitted that he was travelling at least 40 km per hour and conceded that he could have been going 5 km faster (AB54, 57)."
(Page 8)
13 In the submissions on his behalf in relation to the first ground of the appeal, reference was made to a change in camber of the road and to the fact that the appellant was driving a powerful motor car. These matters were not pursued at the hearing and in any event I find that there was no necessity for the learned Magistrate to have made any finding in respect of those matters, neither of which would be of assistance to the appellant. In this regard, I accept the following submissions of the respondent:
"The question for the learned Magistrate was whether the Appellant's manner of driving was dangerous, it was not what caused the accident. Therefore, there was no need for the learned Magistrate to consider whether or not the substance on the road, the camber of the road or the power of the Appellant's vehicle was a cause or contributing factor to the accident.
In any event, had the learned Magistrate been required to determine the cause of the accident, no evidence was adduced to support the proposition that the substance on the road contributed to or caused the accident.
The evidence of the expert witness, Simms called by the Appellant was that it was not uncommon for slippery substances to be on the road at intersections (AB44).
The evidence of the Respondent was that most roads camber (AB22).
Whilst the existence of the substance on the road and the camber of the road were circumstances that may have increased the danger of the Appellant losing control of his vehicle under heavy acceleration, they were not uncommon circumstances. Further, the Appellant was aware of the power of his vehicle (AB53). Rather than exonerate the Appellant these were factors which may have contributed to the dangerous manner of his driving."
14 Accordingly, I do not uphold ground one of this appeal.
Ground Two
15 In respect of Ground Two – "The Learned Magistrate erred in fact and law in that his finding of guilt was unreasonable having regard to the evidence", the appellant submitted:
(Page 9)
- "There was evidence given by the Appellant's father Roy Steven Savill that a short time after the accident, he examined the road at the relevant intersection and found a dried glassy substance on the road. Further there was evidence from the expert witness, Martin Simms, (pages 40 and 44) that any slippery substance on the road could have an effect on causing a driver to lose control of his vehicle while turning through an intersection. The Learned Magistrate accepted that there was 'certainly something there', on the road, (p. 84) but indicated that it had 'not been established what it was.'
There was evidence given by the said expert witness (p 40 and 44) that the camber of the road changed to a relevant degree where the defendant turned through the intersection, and that this factor could have contributed to the appellant's losing control of the vehicle. The Learned Magistrate appeared to accept this. At paragraph 4 page 84 he says, 'The camber on the road would make it more difficult to control the vehicle as it goes through this right turn manoeuvre.'
There was evidence given by the said expert witness (Page 41, second last paragraph) that the fact the Appellant was driving a powerful motor vehicle may have had some bearing on him losing control of the vehicle. The Learned Magistrate failed to consider this.
The Learned Magistrate failed to take into consideration sufficiently or at all the above 3 possible causes of contributing factors to the appellant's losing control of the vehicle.
It is submitted that the Learned Magistrate made his findings of guilt as to driving dangerously to the public or any person predominantly on the basis that an accident had occurred. It is submitted that where speed is the reason that the alleged driving is considered dangerous to the public or any person, it must be demonstrated that in all the circumstances the impeached driving passed beyond the point where it represented a mere departure form [sic] the rules of the ordinary highway code, and became so serious a departure from the rules that the manner of speed of driving created a wholly unreasonable and unwarranted danger to the life or limb, or both, of the other road users: Traffic Offences and Accidents 3rd edition, Douglas Brown, page 102."
(Page 10)
16 In response to those submissions, the respondent contended that:
"The High Court has considered the relevant principles applicable to assessing whether a verdict is unsafe and unsatisfactory: M v The Queen (1994) 181 CLR 487 at 492-494
Those principles are applicable to a Magistrate's decision in the Court of Petty Sessions: Rasoolifard v Nicol [2001] WASC 142 at [25].
The concept of dangerous driving imports a quality in the manner of driving which either intrinsically in all the circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being who as a member of the public may be upon or in the vicinity of the roadway in which the driving is taking place: McBride v R (1966) 115 CLR 44 at 49-50; Kaighan v R (1990) 11 MVR 119 at 122.
Dangerous driving requires a serious breach of proper conduct. The seriousness is determined by the potential danger to the public arising from the quality of the Appellant's driving not the degree of capability: McBride v R (supra) at 50; Kaighan v R (supra) at 122.
The relevant quality of driving is to be judged objectively by having regard to the particular situation and knowledge of the driver in determining what are material circumstances in which the driving occurs and by considering whether any reasonable person [in] the position of the driver would recognise the danger arising out of the appreciable risk of injury to other persons: Morton v Bevis (1993) 19 MVR 181 at 184; Kaighin v R (supra) at 395.
The offence of dangerous driving requires that there must be some fault on the part of the Appellant which caused the danger to the public. Fault in this context means no more than that the Appellant was responsible for the manner of driving and was not for example the victim of a sudden emergency, illness or the act of another person: Smith v R [1976] WAR 92 at 105.
Carelessness or a lack of due care will not of itself constitute dangerous driving. However, where the carelessness or lack of due care in all the circumstances exposes the public to danger,
(Page 11)
- dangerous driving is made out: Jiminez v R (1992) 173 CLR 572 at 579; Kaighan v R (supra) at 395."
17 The Respondent's evidence was:
"• he observed the Appellant's vehicle commence to enter the intersection when the arrow was yellow and it turned red as the vehicle crossed the sold white line associated with the intersection (AB6);
• the Appellant's vehicle was travelling at speed, estimated to be 50 km (AB7);
• the vehicle accelerated heavily, resulted in both wheels spinning, a squealing noise and smoke off the rear tyres (AB7).
Simms, the expert witness called on behalf of the Appellant gave evidence that, in his opinion, the reason the Appellant lost control of the vehicle was because he applied too much power (AB48).
The Appellant's evidence was that he did not accelerate to go through the intersection (AB 52).
It is implicit in the learned Magistrate's reasons that he accepted the Respondent's evidence concerning the Appellant's manner of driving and necessarily rejected the Appellant's evidence that he did not accelerate to go through the lights (AB84).
Having regard to the elements of the offence of dangerous driving the learned Magistrate's findings of fact were not against the weight of the evidence.
Not only was the learned Magistrate not required to determine the cause of the accident he did not purport to do so. The learned Magistrate concluded that the manner of the Appellant's driving was dangerous because by rapidly accelerating he could lose control and then cause danger to others (AB84)."
18 The prosecution called as its only witness, Constable Cruickshank who described the events at the intersection as follows (AB11):
"I observed the turn arrow to be on for traffic to turn from Welshpool Road heading in a westerly direction and head north
(Page 12)
- on Tonkin Highway, I observed the arrow was on green, I observed the arrow to change to yellow, then when I glanced back I observed a silver VT Commodore, registration IADT 764 start to enter the intersection. The red arrow actually lit up just as the vehicle crossed the solid white line associated with the intersection.
HIS WORSHIP: Right? - - - The vehicle appeared to be travelling at speed, I'd estimate around 50 kilometres an hour, turning right.
Yes?---And I observed the vehicle to accelerate heavily, both rear wheels of the vehicle began to spin, emitting a loud squealing noise and also causing a lot of smoke to come off the rear tyres.
Yes?---The tyres continued to spin. I could hear the engine revving and the rear of the vehicle actually swung out towards the left-hand kerb rather violently.
Yes?---At this time the vehicle was basically facing me, covering both lanes of Tonkin Highway. The vehicle has then swung back the opposite direction, so the back end's bit in and has swung back towards me, smoke still coming off the rear tyres, and then it's gone forward, mounting the high impact kerbing on the left-hand verge of the road and in doing so it's narrowly missed a traffic light post. It would have been within about 10 centimetres of the traffic light post as it mounted the kerb. The vehicle's then gone across the verge and again the back end of the vehicle has then swung back to the left.
Yes?---And it's fishtailed on the verge, colliding with a no-standing sign, and finally coming to rest just behind me, still on the northbound verge.
Right?---I moved across to the side of the road where the vehicle had stopped and I spoke to the male driver who identified himself as Craig Royston Savill, the defendant now present in court.
Yes?---I had a look at the vehicle and also examined the rear tyres and both rear tyres were actually bald. One tyre, from memory, was almost completely smooth; the other tyre was below 1 millimetre of tread."
(Page 13)
19 His description of the traffic at the time was as follows (AB15):
"PROSECUTOR: Now, constable, perhaps you can just describe for his Worship the traffic and what the situation was with the traffic?---At the time, being half past five in the afternoon, traffic was very heavy. There's a lot of traffic that uses that intersection. As I mentioned, I was third vehicle back in lane 2. As far as I could see behind me, there was actually traffic banked up. Ahead of me on Tonkin Highway there was also a big build-up of traffic and there were other vehicles also waiting on Welshpool Road, I don't recall exactly how many, but there was very - - I would rate it as being heavy traffic.
So the turn that the defendant was doing, which is a right-hand turn, that's got an arrow and a slip lane to go round there?---That's correct, yes.
Okay. And so you said in your evidence that he came round at about 50 kilometres per hour?---That's an estimate.
Yes. How is it that he came round 50 Ks if there was so much traffic that had built up? How did he actually do that?---Okay. From what I could see it appeared that he was trying to beat the traffic lights before they changed to red.
So were there other cars turning right before the defendant actually did?---Some other cars had turned right but they had cleared. There is a substantial gap before the defendant actually came through the traffic lights. At that intersection the slip lanes actually operate first, so if you're sitting on Welshpool Road, the right turn slip lane into Tonkin Highway and the right turn slip way if you're heading east on Welshpool Road into Tonkin Highway, both of them activate together so basically traffic from each side turn across each other.
Yes. Okay?---Before then the lights change for traffic for going straight ahead on Welshpool Road.
Are you able to tell his Worship whether that did in actual fact occur in this event before - - ?---Yes, it did.
And are you able to tell his Worship what colour the lights were when the defendant was doing his turn?---The arrow was
(Page 14)
- actually red and the lights had just gone green for traffic heading west.
At what stage was the arrow red?---The arrow was red basically when the Commodore was directly in front of me. I was positioned in lane 2. It had just gone across the solid white line associated with the intersection."
20 The appellant's evidence as to what happened at the intersection was as follows (AB 52-53):
"As I approached the lights, the lights turned to amber. I didn't - - wasn't sure if I could stop in time safely, so I proceeded through there, just rolling, I didn't accelerate to go through the lights. When I got to the - - to the bend I accelerated as normal out of the bend and the rear of the car slid around and then I tried to correct it.
And how did you try to correct it? --- I turned in the opposite direction. ...
In terms of your acceleration, what did you do? --- I just accelerated as normal, but once - - once the car slid out past that point, once I started correcting I backed off and with the momentum the car just flicked around and I just went over - - went over the kerb and off the side of the road.
And did you hit anything? --- Yes. A no-standing sign which was nearby the power pole, so I hit that before the car was even completely off the road."
21 The evidence indicates that the appellant's car tyres were worn, to the extent that they were, as the appellant said, in part "illegal".
22 I am not persuaded that the learned Magistrate erred in his conclusion that the evidence as to the appellant's manner of driving when turning into the intersection and then losing control of his vehicle, in the circumstances that there was heavy traffic on the roads at the time, was capable of supporting a finding that it was dangerous.
23 Accordingly, I do not uphold this ground of appeal.
(Page 15)
Ground Three
24 In relation to ground three – "The Learned Magistrate erred in law in that he reversed the onus of proof", the appellant submitted that:
" ... all elements of the offence under section 60 and 61 of the said Act must be proven by the prosecution on the standard of 'beyond a reasonable doubt':
Mancini v DPP [1942] AC 1, at 11
R v Mullen (1938) 59 CLR 124
Hedge v Thurston [2001] WASCA 43
The Learned Magistrate says:
(a) at p 63 (final paragraph) 'The Defendant doesn't have to do anything. By cross examination and giving evidence he hopes to have raised a doubt on the balance of probabilities that's not been negatived by the prosecution at the end of the day.'
(b) When giving his decision (p.84) 'Has the Defendant raised a doubt, I say no'
(c) at (p.84, paragraph 3), 'The Defendant or his father, says that there was an [sic] oil on the road. I come to the conclusion that that's not been really established. There's something there, but I don't know what it is.'
By the above comments (a) and (b) the Learned Magistrate indicated that he had therefore wrongly applied the onus and burden of proof, and in effect, reversed the onus of proof so that the defendant was required to prove his innocence, and in regard to (c) that the Learned Magistrate was implying that it was for the Appellant to prove that the alleged substance was oil and if he could not do so, the Learned Magistrate would not consider the possibility of this substance on the road as a cause or contributing factor towards the accident. In doing so he was wrongly applying the onus of proof."
25 The respondent replied by submitting that:
"Prior to hearing submissions the learned Magistrate correctly stated that the onus and standard of proof (AB71).
He then made the following comment (AB71):
(Page 16)
- 'The Defendant does not have to do anything. By cross-examination and giving evidence he hopes to have raised a doubt on the balance of probabilities that is not being negatived by the prosecution at the end of the day.'
- When giving his reasons the learned Magistrate, after making findings of fact in relation to the Appellant's manner of driving, said 'Has the defendant raised a doubt? I say no.' (AB84)
When considering whether or not the charge of reckless driving had been proved the learned Magistrate clearly applied the correct onus and standard of proof (AB85). Having found that it had not been proved beyond reasonable doubt that the Appellant's driving was not inherently dangerous the learned Magistrate went on to convict him of the lesser offence of dangerous driving (AB85).
The learned Magistrate's comments about what the Appellant had hoped to do by cross-examining the Respondent's witness and calling evidence was no more than an observation that having done so the Appellant had hoped there was a reasonable doubt in the mind of the learned Magistrate.
The learned Magistrate's comment that it had not been established that the substance on the road was oil was a factual finding that was open on the evidence (AB61-62, 64 68). In making such a finding the learned Magistrate did not cast an onus upon the Appellant (AB84).
Whether or not the substance on [the] road, whatever it was, caused or contributed to the Appellant [sic] loss of control of his motor vehicle was irrelevant to the basis on which the learned Magistrate convicted the Appellant of dangerous driving.
In any event, had the learned Magistrate imposed an onus on the Appellant with respect to that issue no miscarriage of justice would have resulted as the matter was irrelevant having regard to the elements of the offence and finding of fact of the learned Magistrate in relation to the Appellant's manner of driving: section 199(1)(b) of the Justices Act 1902."
26 The respondent then contended that there had, in any event, been no substantial miscarriage of justice, submitting that:
(Page 17)
- "Pursuant to section 199(3) of the Justices Act the Court is not required to set aside, quash or vary a decision because a Justice omitted to make any necessary finding if the facts or evidence in substance support the decision or justify the finding.
Pursuant to section 199(1)(b) of the Justices Act the Court may dismiss an appeal even though a point on appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred.
It would only be appropriate to allow the appeal and dismiss the complaint if the Court was of the view that an error had occurred and conviction could not be sustained in any circumstances."
27 I do not think that the learned Magistrate did reverse the onus. His Worship's comments upon which the appellant relies do not demonstrate any such reversal of onus and it is apparent from his Worship's statements at AB71 that he was applying the correct principles in relation to onus and the standard of proof when his Worship said:
"The next step is the burden of proof is on the prosecution to prove beyond reasonable doubt each of the elements of the offence."
28 At AB 85, his Worship again mentioned the standard of proof when he said, in relation to the charge of driving in a manner that was inherently dangerous:
"It's not been proved beyond reasonable doubt that it was inherently dangerous."
29 I shall accordingly dismiss the appeal.
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