Schofield v Avins
[2002] WASCA 17
•13 FEBRUARY 2002
SCHOFIELD -v- AVINS [2002] WASCA 17
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 17 | |
| Case No: | SJA:1052/2001 | 13 DECEMBER 2001 | |
| Coram: | WHITE AUJ | 13/02/02 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | The appeal succeeds and the appellant's conviction is set aside | ||
| B | |||
| PDF Version |
| Parties: | DAVID MICHAEL SCHOFIELD RONALD JOHN AVINS |
Catchwords: | Criminal law Road Traffic Act 1974, s 61(1) Appellant convicted of dangerous driving The findings of fact not sufficient to justify a finding beyond a reasonable doubt that the appellant was guilty of dangerous driving Turns on its own facts |
Legislation: | Road Traffic Act 1974 |
Case References: | Nil Butler v Gray [1944] 46 WALR 91 Kaighin v The Queen (1990) 1 WAR 390 Mazza v Haime [2000] WASCA 42 McBride v The Queen (1966) 115 CLR 44 Moore v Moore [2001] WASCA 126 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
RONALD JOHN AVINS
Respondent
Catchwords:
Criminal law - Road Traffic Act 1974, s 61(1) - Appellant convicted of dangerous driving - The findings of fact not sufficient to justify a finding beyond a reasonable doubt that the appellant was guilty of dangerous driving - Turns on its own facts
Legislation:
Road Traffic Act 1974
Result:
The appeal succeeds and the appellant's conviction is set aside
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Dr J J Edelman
Respondent : Mr D J Matthews
Solicitors:
Appellant : Ilberys Lawyers
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Butler v Gray [1944] 46 WALR 91
Kaighin v The Queen (1990) 1 WAR 390
Mazza v Haime [2000] WASCA 42
McBride v The Queen (1966) 115 CLR 44
Moore v Moore [2001] WASCA 126
(Page 3)
1 WHITE AUJ: On 19 March 2001, the appellant was convicted in the Court of Petty Sessions at Perth on a charge of dangerous driving and he now appeals against that conviction on the following grounds:
"(a) The learned Magistrate erred in fact in finding beyond reasonable doubt that the Applicant was:
(i) travelling at an excessive speed that was dangerous in the circumstances;
(ii) travelling between the Gull Service Station and the accident site at an excessive speed; and
(iii) when there was no evidence or no sufficient evidence to support such findings of fact.
(b) The learned Magistrate erred in law in concluding that the Applicant had driven dangerously in that:
(i) there was insufficient evidence upon which to base a conclusion beyond reasonable doubt that the Applicant drove his motor cycle in a manner that is, having regard to the circumstances of the case, dangerous to the public or to any person;
(ii) he was in error in finding that dangerous driving should be imputed to the Applicant because of the accident;
(iii) he failed to have regard to:
(1) the nature, condition and use of the road;
(2) the amount of traffic on the road at the time it was alleged the Applicant was travelling at an excessive speed;
(3) the amount of traffic which might reasonably be expected to enter the road from other roads and places;
in concluding that the Applicant drove dangerously;
(Page 4)
- (iv) he failed to consider whether there could be any causal connection between his driving up the hill and the relevant collision."
2 The learned Magistrate made the following findings of fact:
"I think in traffic accidents it's very similar. Lots of witnesses have different recollections. Also, I note it's about 12 months since the event. The offence occurred on the - - alleged to have occurred on the 4th of March 2000 and we're now about the 19th of March 2001 so it's been some time in coming to the - - I'm not being critical of that delay, but I'm just saying that delay must affect witnesses.
Frequently what happens is the longer the time goes, the more the witnesses get convinced in their recollection. I also come to the conclusion that nobody here has knowingly tried to mislead me. It's a charge of dangerous driving. It's alleged that on the 4th of March the defendant drove a motor cycle on Canning Highway in a manner that was in the circumstances dangerous to the public or any person. It's about nearly 11 o'clock, half past ten, eleven in the morning, it's a Saturday morning apparently.
There's been some photographs produced and a street directory, and roughly the Canning Highway's north and south at that point – I'll call it north and south – and what happens is that the defendant comes onto the highway, turns left, having looked up a rise. It's what I'd call a Richardson and Price rise, 1962 West Australian Law Reports, where it was difficult to see up to the right.
The person drew out on to the road and collided with a car coming over the rise. That person was prosecuted for failing to give way to the right and I think the person was convicted in Petty Sessions on appeal in the Supreme Court. The Supreme Court said, 'In circumstances like that, all you can do is do the best you can.' So what we've got is a person who is - - the victim, as I will call her, is close to the top of the hill, she looks, it's clear to the left, which is down a hill, she then sees, she says, two vehicles. I would have thought - - I've come to the conclusion, at least on the balance of probabilities - - at least on the balance of probabilities there's only one vehicle there. I think it's the witness who gave evidence, Mrs Martin.
(Page 5)
- The victim's confused about the other vehicle and the outside lane. The victim says that she sees two cars and then a motor cycle coming between those two cars. That's the defendant and the defendant has a passenger.
Back from there I have evidence that the defendant came between several cars. I know that that's the way motor cyclists drive and I don't say that's particularly dangerous to want to be ahead of the pack. How you get through the pack might be another matter.
The extent to which I should take into account actions further back in coming to the conclusion as to whether the defendant's dangerous at the particular spot, I'll comment on at the end.
The defendant says she had plenty of time. She says she drew across to turn right, going what I call north in Canning Highway. One witness, or at least one witness said that she stopped. I come to the conclusion that I'm in doubt about that. I don't think she did actually stop. She might have been very slow but I don't think she in fact stopped. What it appeared to at least two of the witnesses was that she did in fact stop. By that stage the defendant says he was too close. He applies the brakes but then eases them off because he reckons he can't stop in time and that's probably true. There's some evidence as to noise and there's a couple of guesses about what his speed was coming up to the incident where the defendant - - where the victim drew out of the driveway; that's somewhat south of Saunders Street.
I should make some other findings. It's not a case of coming between two cars because I don't think the outside car was there. It's near a rise. The speeds apart from the defendant are all well under the speed limit. I have to say something about the defendant's speed along the way. The question of where the victim's car was – how far across the road – there's a dispute in the evidence as to that. The victim would have us believe that she's - - the back of her car is in the - - the rear of her car is totally within the lane nearest the centre line. Some other witnesses have given evidence that the rear of her car was rather closer, was at least inside the lane nearest the kerb and there's varying degrees as to where the rear of the car was in that lane.
The witnesses, as I said, gave inconsistent statements along the way. The motor cycle increased speed to get through the
(Page 6)
- vehicles. The defendant says that he could see the car - - the victim's car sometime before. He lost it for a while in the car that had come from Saunders Street, that was the car on the left in the kerbside lane that the victim had seen, and then it became visible again and then it came out.
The defendant's witness says that he had a pretty clear view of it. He's a bit higher on the motorcycle because of the configuration of the seat.
I've then got to come to the conclusion - - I've first got to identify what was, if anything, dangerous about this incident. I come to the conclusion that on the evidence I got – I'm the jury – I believe that the defendant was travelling too fast over the top of the hill and I convict him for dangerous driving. Yes, thank you. Convicted. Yes, thanks."
3 The basis of the conviction was, therefore, the finding that "the appellant was travelling too fast over the top of the hill". It is, I think, reasonable to understand that finding in the sense that the appellant was travelling too fast over the top of the hill to be able to avoid a collision with the complainant's vehicle.
4 Counsel for the appellant made the following submissions in his outline:
"1. 'Driving dangerously is not to be imputed to a man because an accident happens': Butler v Gray (1944) 46 WALR 91 at 95.
2. 'This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage. Dangerous driving requires a serious breach of the proper conduct of a vehicle upon the highway.' McBride v The Queen (1966) 115 CLR 44 at 50 para 2; 51 para 3 (Barwick CJ).
3. Even if a finding had been made that the appellant was speeding, in assessing whether the driver was driving dangerously all factors must be considered. Any single road traffic breach, such as speeding, must be weighed with all the other circumstances of the case: Butler v Gray (1944) 46 WALR 91 at 95.
4. Section 61(1) Road Traffic Act 1974 (WA) provides:
(Page 7)
- Every person who drives a motor vehicle in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person, commits an offence.
- 5. The relevant circumstances were:
(a) There was little traffic on Canning Highway heading south: TS 41 (Murphy), 52 (Peron) 63, 67 (Martin) 122 (Farr).
(b) Canning Highway is a dual lane carriageway at all relevant points.
(c) Visibility was good and the road was dry.
(d) Until shortly before the accident both lanes up the hill were vacant except for the appellant's motorbike:
(i) inside lane alongside the appellant was vacant up the hill and from 250m before the hill: TS 84 (Schofield) 125 (Farr).
(ii) The appellant was the only vehicle in the outside land (Decision p3).
(e) Shortly before the accident Ms Martin's car exited onto the inside lane less than or about 100m before the accident site: TS 17 (Gorman) 75 (Game) 122 (Farr).
(f) Ms Martin was only travelling 15-20 kph: TS 69(Martin).
(g) Ms Gorman exited her drive onto Canning Highway adjacent to the oncoming traffic with a distance of only one and a half lightposts separating her car from Ms Martin's: TS 7 (Gorman).
(h) Ms Gorman exited her drive so slowly that 'it appeared to at least two of the witnesses was that she did in fact stop' (Decision p3).
(Page 8)
- (i) Ms Martin, travelling at 15-20kph had only 10-15m within which to brake: TS 70 (Martin). Even then, evidence was given that she skidded in order to stop: TS 88 (Schofield) 119 (Farr).
(j) At the time of the accident the appellant was alongside Ms Martin and the appellant could not have swerved to avoid the accident without hitting Ms Martin: TS 72-73 (Martin) 88 (Schofield).
- 6. The magistrate in his reasons made no reference to any of these circumstances but simply concluded that 'the defendant was travelling too fast over the top of the hill and I'd convict him for dangerous driving.' (Decision p4, penultimate sentence); 'the reason for the whole thing is that he came over at too fast a speed' (decision p8, first para).
7. The magistrate made no finding as to the appellant's speed and appears to have simply concluded that because the accident happened therefore the appellant was driving too fast from which he then concluded that the appellant was driving dangerously (which is clearly a non-sequitor).
8. As to the speed of the appellant the evidence was conflicting and the magistrate made no finding as to which evidence, if any, he accepted (Decision, Page 6, Para 2).
(a) The most accurate evidence of the appellant's speed is that of the appellant himself. He gave evidence that his digital speedometer read 60-65 kph when he was 100m before Saunders St: TS 99 (bottom) – 100 (top) (Schofield)
(b) The parties closest to the accident only gave estimates of the appellant's speed up the hill and their estimates ranged between 70-80 kph.
Mr Farr 70-80 kph: TS 123 (Farr: 'no way in this earth' that the appellant was travelling 100 kph)
(Page 9)
- Ms Martin 'about 80 kph' and '80 kph plus': TS 67-68
Ms Gorman: Could not estimate the speed. TS 12
- (c) Ms Peron was very uncertain as to where precisely the appellant passed her but estimated the appellant's speed at 80 kph. TS 53.
(d) Mr Murphy's evidence as to speed is unrelated to the finding of the magistrate:
(i) Mr Murphy's evidence concerned the speed of the appellant at the Gull Service Station and not up the hill (which is the only relevant time to the magistrate's decision). TS 38 ('the slope of the road occurs a third of the way after the service station': TS 34) (Murphy).
(ii) The magistrate confined Mr Murphy's evidence simply to the fact that the appellant was travelling appreciably faster than Mr Murphy's 65 kph: TS 42 (his Worship).
(iii) Mr Murphy misplaced the scene of the accident at Saunders Street: TS 45.
- 9. In the circumstances the decision of the magistrate miscarried but, further, there was no evidence to support a conviction of the appellant and the interests of justice require that the conviction be quashed and a verdict of acquittal entered: Kaighan v The Queen (1990) 1 WAR 390 at 399 (para 15) – 400."
5 The respondent's submissions in reply were:
"1. The law in relation to dangerous driving is conveniently set out by McKechnie J in Moore v Moore [2001] WASCA 126 at paras 19-23.
2. The following circumstances are relevant to the question of whether the appellant's driving was dangerous:
(Page 10)
- (a) the appellant was riding a motorcycle (transcript pages 83, 91);
(b) the appellant was carrying a pillion passenger;
(c) there were other cars on the road on which the appellant was travelling (transcript pages 57, 118);
(d) the appellant was exceeding the speed limit as he came over the crest of a hill on the other side of which were driveways and intersecting streets from which traffic could enter the road on which the appellant was travelling (transcript pages 11, 34, 38, 47, 53, 54 and 92); and
(e) the appellant did not reduce his speed after coming over the crest of the hill despite the fact that he had noticed a car in a driveway ahead of him and then lost sight of that car (transcript pages 38, 56, 67, 86, 88, 97, 98, 106 and 128).
- 3. The following comments of Heenan J in Mazza v Haime [2000] WASCA 42 at para 10 are apposite:
'As the wording of s 60(1) shows, the speed at which a motor vehicle is driven in itself can constitute a danger to the public. Even on an open road with a high speed limit, the likelihood of a sudden emergency always is present. Kangaroos, cattle or other animals can suddenly appear on the road only a short distance ahead. Branches of trees or the trees themselves might fall on or in front of the vehicle. In a built up area the likelihood of a sudden emergency is much greater. Members of the public generally do not expect speed limits to be ignored. When a motor vehicle exceeds the limit they are likely to take precipitate or even foolish action. A child might suddenly run on to the road. An adult might misjudge the speed of the approaching vehicle and step into its path. A car might suddenly appear from a driveway or a side road. To drive as fast as the appellant did greatly increases the risk of accident to the occupants of a vehicle – especially if it
(Page 11)
- is a motorcycle – or to other persons who happen to be in the vicinity.'
- 4. His Worship's decision was correct. Alternatively it did not, in all the circumstances, involve a miscarriage of justice."
6 The appellant entered Canning Highway turning left from Barker Avenue and proceeding in a southerly direction. The speed limit in Canning Highway is 60 kilometres an hour and there is a dual lane carriageway for southbound traffic. As one travels southwards, past the intersection with Barker Avenue, Canning Highway inclines upwards towards the top of a hill, whose crest is some distance before one reaches the Gull Service Station, which is situated on the opposite side of Canning Highway.
7 The evidence shows that the complainant drove her motorcar forwards, very slowly, from her driveway and across the highway, blocking the western lane of the dual carriageway (that is to say, the right-hand lane for traffic travelling in a southerly direction.) She observed two motorcars approaching at less than normal speed. (His Worship found that the complainant was mistaken as to the number of motorcars that she saw and that there was only one such vehicle.) She estimated that she had adequate time to make the turn across the road. She was intending to turn right into Canning Highway. She then said that the vehicle in the lane nearest the centre line was decreasing its speed, while the other motorcar was increasing its speed and catching up to the former vehicle. The complainant testifies that she then saw a motorcycle between the two cars which appeared to be accelerating. She proceeded, believing that the motorcyclist could pass behind her in the lane nearer the kerb which she described as "more than completely clear."
8 The motorcycle collided with the complainant's vehicle, spinning it about a hundred and eighty degrees so that her car ended up facing her driveway. There is a double white line marking the centre of the 4-lane highway and the complainant was intending to drive over that double line, to turn right and to proceed in a northerly direction in Canning Highway. She could not estimate the appellant's speed prior to the collision.
9 Significantly, the witness, Ms Martin, driving the vehicle approaching the complainant's car at a speed of 15 to 20 kilometres an hour, said that she had braked to avoid colliding with the complainant's car when it was driven from the driveway across the highway ten or
(Page 12)
- fifteen metres in front of her and was, she estimated, blocking two thirds of the laneway. This witness had seen no other car next to her but had seen the motorcycle. She did not support the complainant's evidence as to the motorcycle having driven between her car and another vehicle, nor that there was no traffic travelling in the opposite direction in Canning Highway at the time. Her evidence when cross-examined included the following:
" ... At the point of impact was your car and the motorbike reasonably parallel or was the motorbike quite a bit ahead of you or what - - ?--- Reasonably parallel.
Mm Hm --- And then there was a small gap and they just kept going.
So, with that small gap the motorcycle would have to take a pretty sharp turn to get in front of you? ---At the speed that it was going, yes, it would.
Yes. Okay. So, in your view the motorbike had to hit the car or come - - or swerve onto the oncoming traffic to avoid the collision? --- Yes. Yes. That would be reasonable."
11 The appellant's evidence as to the speed at which he was travelling shortly before the collision was 60 to 65 kilometres an hour, according to the large digital speedometer on his motorcycle.
12 His evidence included the following:
"She [Ms Martin] gives evidence that you passed her then hit this car? --- Yeah because she - - I heard her hit the brakes, because I did hear a squeal, and then the car was in my lane blocking off the whole way."
13 He had tried to move behind the complainant's car as there was oncoming traffic on his right. Had he swerved to the right, he would have hit the oncoming traffic.
14 The learned magistrate said, in the passage which I have quoted above:
(Page 13)
"I also come to the conclusion that nobody here has knowingly tried to mislead me."
15 The facts then appear to be that, shortly before the collision, the motorcycle was travelling in the right hand lane in a southerly direction at a speed of 60 to 65 kph. It passed Ms Martin's car which was travelling at 15 to 20 kph. The complainant drove into the highway, across the path of both Ms Martin and the appellant, when Ms Martin's car was 10 or 15 metres from it.
16 A finding that the appellant was "travelling too fast over the top of the hill" is not, in my opinion, sufficient to justify a finding of dangerous driving. If there was oncoming north-bound traffic in Canning Highway when the complainant drove from her driveway, she would presumably have had to wait in the highway for it to pass before she could turn to her right. By so doing, she would have blocked the south-bound lanes by the length of her motorcar. There are no specific findings in this regard.
17 I accept the authorities referred to by the appellant (and cited in his counsel's submissions quoted above) and respectfully adopt the principles there set out.
18 In relation to the respondent's submission that the fact that the appellant did not reduce his speed after coming over the crest of the hill despite the fact that he had noticed a car in a driveway ahead of him and then lost sight of that car is, I think, adequately countered by the appellant's evidence that the application of brakes would preclude his being able to swerve to avoid the complainant's car and the evidence of Ms Martin as to the distance between her car and the complainant's car as it was driven from the driveway. On that basis, the position would appear to be that a collision was inevitable unless the motorcycle was travelling at only 15 to 20 kph as was Ms Martin's car at that time (as Ms Martin said that the motorcycle was reasonably parallel to her car at the moment of impact, which suggests that it would not have been possible for the motorcyclist to have swerved in front of her car prior to the impact.).
19 In these circumstances, the learned magistrate's findings of fact were not sufficient to justify a finding beyond a reasonable doubt that the appellant was guilty of dangerous driving.
20 Accordingly, I shall uphold the appeal and set aside the appellant's conviction.
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