Semini v Mahoney

[2003] WASCA 71

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   SEMINI -v- MAHONEY [2003] WASCA 71

CORAM:   WHEELER J

HEARD:   24 MARCH 2003

DELIVERED          :   2 APRIL 2003

FILE NO/S:   SJA 1139 of 2002

BETWEEN:   GARRON ROY SEMINI

Appellant

AND

MICHAEL JOHN MAHONEY
Respondent

Catchwords:

Turns on own facts

Legislation:

Road Traffic Act 1974, s 60

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr M D Cuerden

Respondent:     Mr D J Matthews

Solicitors:

Appellant:     Chris Baker & Associates

Respondent:     State Crown Solicitor

Case(s) referred to in judgment(s):

McIvor v Garlick [1972] VR 128

Pike v Webb (1989) 8 MVR 563

Case(s) also cited:

Morton v Bevis (1993) 19 MVR 181

1. WHEELER J: The appellant was charged with reckless driving contrary to s 60(1) of the Road Traffic Act 1974.  The learned Magistrate found the appellant guilty on the alternative charge of dangerous driving pursuant to s 61.  The offence of dangerous driving is committed if a person:

   (a)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; and

   (b)... the driving occurs on a road or in any place to which the public is permitted, whether on payment of a fee or otherwise, to have access.

2. The case against the appellant, broadly, was that on 6 May 2002 he drove his vehicle on the grass car park of the North City Christian Centre.  The prosecution witness Ms Davie was a receptionist at the centre.  She drove her own vehicle into the car park after returning from some banking.  She said that the appellant's vehicle drove in front of her, forcing her to stop.  He then reversed out of her way.  She parked and then noticed an engine "revving" behind her.  She then observed the appellant's vehicle "spinning around and [it] then proceeded to spin outwards, sort of snake along the grass and spinning its wheels right across the other side of the grass".  Ms Davie said she saw the appellant's vehicle "coming out of" a 360 degree spin.  There was a white vehicle following the appellant's vehicle at one stage.  The other principal prosecution witness was Mr Harrop, a contract cleaner at the centre.  He said he observed the appellant's vehicle doing two 180 degree spins.  His evidence was otherwise broadly similar to that of Ms Davie.  There are five principal grounds of appeal.  It is convenient to deal with them in the order in which they appear in the appeal book.

Ground 1 - Failure to give reasons.

1. It is submitted by the appellant that the learned Magistrate's reasons are inadequate in failing to make findings of fact as to what occurred, as to whether or not she accepted the appellant's evidence, and as to why she placed no weight on the evidence of the appellant's father.

2. There was both a submission of no case to answer, upon which a finding was made, and a brief summary given by her Worship at the conclusion of the trial.  It is reasonable to consider these together.

3. Turning to the no case submission first, her Worship set out the legal principles relating to reckless and dangerous driving and identified the relevant danger as a danger to the passenger in the appellant's car.  She referred to the excessive speed at which the prosecution witnesses said the appellant's vehicle was travelling and to its "fishtailing" and concluded that there was a case to answer.

4. At the conclusion of the trial, her Worship rejected certain submissions made on behalf of the appellant as to the way in which his wheels came to spin and as to the behaviour of his vehicle.  That other evidence was broadly to the effect that what occurred was normal behaviour for a vehicle being sedately driven on wet grass.  Her Worship was entitled to reject those submissions, given the conflicting evidence.  She rejected an attack by the appellant on the credibility of Ms Davie and Mr Harrop; although she did not expressly say so, it is clear from the tenor of her Worship's reasons that she accepted their evidence.

5. Her Worship placed no weight on the evidence of the appellant's father.  Although she gave no reasons for that evaluation at that time, it is apparent from the view which her Worship took during the course of his evidence earlier in the day why that course was taken.  He had in effect performed an experiment with his own vehicle on the grass in question.  However, the experiment was performed later on the relevant day, it had been raining, and he had in any event no particular expertise in relation to vehicles.  Her Worship considered that the evidence of the appellant's passenger also carried very little weight.  That view was clearly based on the passenger's demeanour, since her Worship commented both that he appeared to treat the matter as a joke and that his evidence was not entirely consistent with the appellant's in any event.  Her Worship then referred to the relevant legal tests again, although in brief terms.

6. Her Worship found that the driving in question occurred on a public car park in the afternoon after rain.  She found that it was an incident of such a nature as to cause two independent witnesses to stop and observe the appellant's vehicle.

7. It appears to me that the real question for her Worship, and the basis on which this case was principally fought, was whether the appellant was deliberately revving his engine and driving his vehicle at excessive speed, causing it to change direction unpredictably, or whether he was driving with due care but with minor deviations in the path of his vehicle caused by the very wet conditions.  The question of which of those accounts was to be accepted depended largely on the credibility of the witnesses involved and her Worship, for reasons which she gave, plainly accepted the evidence of the relevant prosecution witnesses.  The reasons of her Worship appear to me to have been adequate for the purpose.

Ground 2 - Incorrect test for dangerous driving.

1. The focus of this ground relates to a passage in her Worship's findings which is to be found at 88 of the trial transcript.  Her Worship said:

   "So based on the evidence before the court and taking into account what section 60 of the Road Traffic Act states, I find the defendant's actions, that's yours, were immature and not the standard expected of those who hold a motor drivers licence, which I tell young people on a regular basis is a privilege, not a right."

   Clearly, the observations of her Worship there do not advert to the statutory test for dangerous driving.  However, it appears to me that that was not their purpose.  Her Honour had adverted to the appropriate legal principles governing the question of what constituted dangerous driving at an earlier stage during the trial.  It appears to me that at this passage what her Worship was doing was stating in shorthand form her conclusion in relation to the central question of credibility which I identified earlier; namely, whether the appellant's driving was "normal" driving, somewhat affected by the condition of the grass, or whether he was deliberately causing his vehicle to behave in an unpredictable way.  The comment is directly addressed to the appellant, who was only 17 years of age, and was plainly intended to put to him in words which he would understand what her Worship thought of his driving.

Ground 3 - No evidence of real potential danger to the passenger.

1. In addition to the other factors to which I have earlier referred relating to the manner of the appellant's driving, I note that the evidence before her Worship was to the effect that the appellant was at the relevant time just over 17 years of age and would therefore have been an inexperienced driver.  His driving was in a car park, the surface of which was grass and was not completely level, there being some evidence of "humps" and inclines.  It was in that context that his driving at excessive speed, revving his vehicle, and spinning and "fishtailing" his vehicle on wet grass is to be seen.  It appears to me that there was a very clear potential danger that the appellant could lose control of the vehicle entirely with the potential consequence that the passenger would thereby suffer injury.

Ground 4 - The photographs, Exhibit "A".

1. There were certain photographs taken at the scene some five days after the events in question.  The evidence of the police officer through whom they were tendered was that the pattern of tyre tracks to be observed in the photographs was the same as the pattern of tyre tracks which he observed on the day in question.  Her Worship merely said that she would take "very little notice" of the photographs on the basis that they were merely to bring the scene to the Court's attention and because they were taken five days after the offence.

2. The appellant complains that the photographs should have been given much greater weight.  It is the appellant's submission that the appellant's uncontradicted evidence was that his car had a "slipped diff" with the result that only one of his wheels would have been driving the vehicle at the relevant time while he submitted that the photographs showed clearly the tracks of two wheels on the ground.

3. There are several difficulties with this submission.  The first is that although the appellant said in his evidence that he knew "a fair bit about cars" there was no suggestion that he had any kind of expertise in the area.  His passenger expressed a somewhat different view about the sort of differential that the appellant's vehicle had, and seemed to think that both wheels would spin on the grass.  In any event, having viewed the photographs which have been received from the Court of Petty Sessions subsequent to the hearing of the appeal, it appears to me that in two out of the three photographs, although the tracks of two tyres are largely visible on the grass, the track of one wheel is much more distinct than the other so that, even on the appellant's own evidence, it would appear that the tracks could well have been the tracks of his vehicle.

Ground 5 - Whether public place.

1. The appellant points out that no evidence was led as to the "public" nature of the grassed car park area.  It is true that there was no direct evidence on the question of whether the owners of the car park encouraged members of the public to use it.  However, the evidence was that it was a large grass car park belonging to the North City Christian Centre.  At that centre there was a recreation facility, which was closed at the relevant time, and an office, which was open.  There were no signs limiting or prohibiting public access, and there were no obstructions to any of the entry or exit points.  It seems to me that the conclusion was not only open, but inevitable, that it was an area to which members of the public "are lawfully entitled, invited or permitted to be there in their capacity as members of the public" (Pike v Webb (1989) 8 MVR 563, citing McIvor v Garlick [1972] VR 128).

2. It is my view that this appeal should be dismissed.