Senior v Police - [2005] SASC 88

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SENIOR v POLICE
Judgment of The Honourable Justice Sulan
11 March 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS
The appellant was convicted of driving a motor vehicle at a speed which was dangerous to the public contrary to s.46(1) of the Road Traffic Act 1961 (SA) – the magistrate imposed a $300 fine and licence disqualification of six months – the appellant was driving at 156 kilometres per hour along the Southern Expressway – the speed limit was 100 kilometres per hour – the road was damp, but not slippery – visibility was good – whether the speed constituted a risk which created a wholly unreasonable and unwarranted danger – whether the driver of a motor vehicle himself could constitute a member of the public – the risk created by the speed of the appellant’s vehicle was such that it is sufficient to constitute the driving as dangerous.
Road Traffic Act 1961 (SA), s.46, referred to.
Firth v Prestwood (1986) 44 SASR 427; Tidswell v Police [1998] SASC 6822, applied.
Merrill v Police (1996) 24 MVR 555; Pope v Hall (1982) 30 SASR 78; Siviour-Ashman v Police (2003) 85 SASR 23, considered.

SENIOR v POLICE
[2005] SASC 88
Magistrates Appeal

SULAN J This is an appeal against conviction and sentence imposed by a magistrate on 16 November 2004. The appellant was convicted of driving a motor vehicle at a speed which was dangerous to the public, contrary to s 46(1) of the Road Traffic Act 1961 (SA) (“the Act”). The magistrate imposed the minimum fine of $300 and the minimum licence disqualification of six months.
The appellant, who is unrepresented, has appealed against both the conviction and the penalty.
There is little dispute about the facts. At about 9.45 a.m. on Sunday, 20 June 2004, the appellant was observed riding a Ducati motorcycle travelling along the Southern Expressway at Morphett Vale by a police officer, who was operating a hand-held radar laser speed detection device. The Southern Expressway was open to motor vehicles travelling only in a southerly direction. It consisted of two lanes of bitumen in good condition. The appellant’s motorcycle was in the western lane. The road is approximately eight metres wide, and there is a three to four metre verge on each side, with permapine retaining walls four to five metres high on either side. There is a telegraph pole on the western side of the road in the vicinity where the appellant was observed travelling on his motorcycle. The speed limit at the point at which the appellant was clocked at 156 kilometres per hour was 100 kilometres per hour. The road was damp, but not slippery. There were no points of exit or entry on to the Expressway in the vicinity at which the motorcycle was travelling. The road was straight for approximately 900 metres. The day was overcast. Visibility was good. The speed of the motorcycle was recorded at 156 kilometres per hour for a period of approximately three seconds. At the time, the police officer observed a semi-trailer in the eastern lane ahead of the motorcycle. At no stage was that vehicle closer than 100 metres from the motorcycle. There were two or three vehicles to the rear of the motorcycle, some 50 to 100 metres to the north of it.
The appellant was stopped. When he was asked for his reason for riding at that speed he said that he had not ridden the motorcycle for a while, and the acceleration was not what he was used to.
The appellant gave evidence. He said that he was unaccustomed to the power of the motorcycle which could accelerate from 100 to 150 kilometres per hour in a matter of seconds. He said that he had been driving along the Expressway at the required speed limit of 100 kilometres per hour when he was overtaken by two motor vehicles. The vehicles then occupied both the lanes of the Expressway and slowed down. The appellant said he thought the drivers must have known each other, and he was uncomfortable at the manner of their driving and the distance between his motorcycle and the motorcars. He therefore changed lanes, and indicated that he wished to overtake. The vehicles would not let him pass but, at some stage, they became separated by a gap. He manoeuvred his motorcycle through the gap and accelerated to get away from what he considered to be a dangerous situation. He told the magistrate his motorcycle was very powerful. As soon as he had passed the two vehicles and was a comfortable distance from them, he decelerated. It was then that he saw the police officer. He stopped as he was directed. The magistrate accepted that the motorcycle was travelling at the recorded speed for ten to twenty seconds before decelerating. The appellant said that he had observed his speedometer at a speed of approximately 150 kilometres per hour before he decelerated.
The magistrate accepted that the road is unique in the sense that it is always one direction of travel for two lanes of traffic. The road was in good condition. The magistrate accepted that the appellant’s motorcycle was in a good state of mechanical repair and the tyres were in good condition.
The magistrate observed that at a speed of 156 kilometres per hour, a vehicle is travelling at approximately 43 metres per second. The magistrate concluded:
“Whilst I accept that there were no pedestrians, there were no children, there were no vehicles, with the exception of those that were recorded on the Expressway, nevertheless there were two factors which I think were relevant to the circumstances in which the defendant found himself. The first was, and I accept from Exhibit P2, the state of the road was damp, common sense, experience with motor vehicles, and what one is accustomed to hearing in cases of this kind over many years, indicate the logic of what the police officer said, that is the rider of a motorcycle on a damp road would have worse conditions than a dry, dusty road. The road clearly was damp and although the defendant assured me that perhaps inertia, Newton’s laws of motion taken correctly, and all other laws of physics included meant that there was no danger of him falling off the cycle. Nevertheless the cycle was travelling at 43 metres per second at the time he was riding it. Had, for example, a bird been encountered, had a bird or insect been flying in his path and the defendant took avoiding action then I could not say that one could avoid the possibility of a collision with disastrous results. That was always an ever-present risk as it is for all cycle riders. Precisely the difference between impact with a bird at speed on a motorcycle and the visor of a helmet or anything else by comparison with the windscreen of a motor car, I cannot, as a matter of technical expertise say, but commonsense, what one sees on the roadside and what one perhaps has experienced suggests that there is safety in a motor vehicle that perhaps may not be present to the same degree on a cycle.
In any event, it seems to me that there were two factors which have a bearing on the circumstances here. I am not suggesting that the defendant did not have a full or very good vision of what lay ahead. I am not suggesting that the state of the weather provided some sort of restriction on his ability to see a feature well ahead of his cycle but the fact of the matter was that in the event of sudden and avoiding action having to be taken then clearly the damp road sooner or later was bound to intrude as a factor and the Statute refers to speed which is dangerous to the public. The fact of the matter is the defendant was also a member of the public and very much involved here.”
The magistrate concluded that the speed amounted to driving at a speed dangerous to the public.
The appellant submitted that the condition of the road, the state of the weather, the fact that there were no vehicles in the immediate vicinity, the fact that the road was straight and visibility was good, were factors to which the magistrate failed to give adequate consideration. The appellant submitted that as there were no other road users within the immediate vicinity at the time, there was no risk to other road users. It could not be said, therefore, that he was driving in a manner dangerous to the public.
Driving at a speed which is dangerous to the public
The Act provides relevantly:
“46. (1) A person must not drive a vehicle recklessly or at a speed or in a manner which is dangerous to the public.
…
(2) In considering whether an offence has been committed under this section, the court must have regard to
(a) the nature, condition and use of the road on which the offence is alleged to have been committed; and
(b) the amount of traffic on the road at the time of the offence; and
(c) the amount of traffic which might reasonably be expected to enter the road from other roads and places; and
(d) all other relevant circumstances, whether of the same nature as those mentioned or not.”
In Pope v Hall[1], the defendant’s vehicle was observed travelling at 109 kilometres per hour in a 60 kilometre per hour zone on a road where conditions were described as cool and dry and visibility as excellent. Traffic was light. It was a suburban road with side streets, a number of which had been passed by the defendant. Wells J said:
“It is now well settled that if driving in a manner, or (where appropriate) at a speed, which was dangerous to the public is to be proved, it must be demonstrated that, in all the circumstances, the impeached driving passed beyond the point where it represented a mere departure – and nothing more serious – from the rules of the ordinary highway code, and became so serious a departure from those rules that the manner or speed of the driving (as the case may be) created a wholly unreasonable and unwarranted danger to the life, or limb, or both, of other road users.
To speak of the degree of danger created by any given act or course of conduct comprehends, in my opinion, two factors: the degree of risk that something untoward will happen, and the degree of risk that, if something untoward does happen, the damage caused will be more, rather than less, serious. If one were directing a jury one would say: Ask yourselves how likely it was, in the circumstances, that an accident of some sort would occur, and, at the same time, assuming that an accident did occur, how serious it would be; it will be by weighing both those factors together that you will be able to determine the degree of risk created by the situation – in other words, how dangerous the defendant’s driving was.”[2]
[1] (1982) 30 SASR 78
[2] Ibid at 79-80
Section 46(2) provides that the court have regard to “… all other relevant circumstances, whether of the same nature as those mentioned or not.” The grossly excessive speed of the defendant’s vehicle is not excluded from consideration by the Act. External factors will increase the risk of something untoward occurring if a person is driving at speed, but increased speed alone also increases the risk that something untoward may happen. It is commonsense that the greater a driver’s speed, the less able it is to take appropriate action to avoid an unforeseen occurrence. Further, it is commonsense that if the speed of a vehicle is greater, the damage caused or risk of injury will be more rather than less serious. A major consideration in setting speed limits on our roads is the risk of accident and serious injury. It does not follow that every case of driving at excessive speed will result in the driving being dangerous. The question is whether the speed constituted a risk which created a wholly unreasonable and unwarranted danger.
In Firth v Prestwood[3], the appellant drove at 169 kilometres per hour along the Willunga By-pass. The speed limit was 110 kilometres per hour. The road was a four-lane highway with two west bound and two east bound lanes. The area to the side of the road consisted of orchards and vacant paddocks, and there were no access roads in the vicinity. At the time, there were no other vehicles in the immediate vicinity, the nearest vehicle being approximately 200 to 300 metres away, and travelling in a different lane. The weather was fine, and visibility was good. The vehicle was in a good condition. The defendant’s wife and a child were in the vehicle at the time. The magistrate found that, in the circumstances the speed alone, coupled with the presence of the defendant’s wife and child in the vehicle, was sufficient to constitute driving at a speed dangerous to the public. It was submitted to the court that speed alone is not enough to have constituted driving in a manner dangerous to the public.
[3] (1986) 44 SASR 427
Johnston J concluded that there was danger associated with the defendant’s driving, given the nature of the location in which he was driving. He said:
“In my opinion, there was danger associated with the defendant’s driving, given the nature of the location in which he was driving. His very speed reduced his power to make accurate observation of what was going on about; in a practical way, he himself thought for a moment that an accident had occurred, whereas in fact what had happened was that the police officers had stopped an earlier vehicle travelling in the same direction as the defendant. Driving at that speed could easily give rise to a situation of acute danger to others if for some reason the defendant himself was temporarily less able to control the vehicle than he normally would be, by some fainting turn, a coughing fit, or some small event of that sort. A vehicle that stopped on the side of the road, perhaps because it had been called on to stop by the police unit, would eventually make its way back into the stream of traffic. The driver might look and observe an oncoming car but the driver would not assume or be able to discern that the vehicle further back along the road was travelling at 169 kilometres per hour. The fact that none of these events occurred is not to the point. What is to the point is the risk. Another risk is a problem arising from a blow-out. It may of course be said that some of these risks attend an act of driving at 110 kilometres per hour, and so they do; but the risk is not an unreasonable and unwarranted risk in the ordinary circumstances of this road, because society says that that is the speed which in ordinary circumstances can be reached on this sort of stretch or road. To travel at a speed greatly above the maximum is to increase the incidence of risk and to increase the likely consequences of any untoward event to an extent which is unreasonable and unwarranted.”[4]
[4] Ibid at 432
In Merrill v Police[5], Perry J adopted the remarks of Johnston J in Firth v Prestwood, and observed that the higher the speed the less significant are other factors, such as the absence of traffic.
[5] (1996) 24 MVR 555
The appellant’s speed on a motorcycle created an unacceptable risk. If something untoward did happen the damage or injury caused would be serious. Excessive speed alone will add both to the risk of something untoward happening, and to a greater risk of damage and injury if something untoward does happen. The risk created by the speed of the appellant’s vehicle was such that it is sufficient to constitute the driving as dangerous.
The appellant submitted that, as no other road user was at risk, his driving did not amount to driving at a speed dangerous to the public. It was submitted that, within the meaning of the section, the driver does not constitute the public.
In Firth v Prestwood[6], the court referred to the risk to other road users. Johnston J said:
“In my view the magistrate was perfectly correct in finding that this driving constituted a danger to the public. “The public” in the relevant sense is any persons using the highway at that time and included, in the particular instance, the police offices who were attending to their equipment at the side of the road, the defendant’s wife and child who were with him in the car, and other road users including more particularly the vehicle in front of him and such vehicles as were travelling in the opposite direction.”[7]
[6] (1986) 44 SASR 427
[7] Ibid at 433
Johnston J was not expressly considering whether the driver himself or herself could constitute a member of the public.
There is a significant public interest in preventing road accidents, even those where the victim is the driver who is alone in a vehicle with no other persons being put at risk by the driving; See Tidswell v Police.[8] The policy of the Act is to ensure that drivers of motor vehicles comply with the rules of the road and drive safely to avoid accidents which may result in death, injury or damage. There is both a social and economic cost to the community if road users are injured in accidents involving only themselves. In my view, the magistrate was correct in rejecting the appellant’s submission that he posed no risk or danger to the public.
[8] [1998] SASC 6822 at [6] per Bleby J “One begins with the point that to be found guilty of this offence, it must be shown that in all the circumstances, the impeached driving passed beyond the point where it represented a mere departure from the rules of the road, and that it had become so serious a departure that the speed of driving created a wholly unreasonable and unwarranted danger to the life, limb or both of other road users: Pope v Hall (1982) 30 SASR 78 per Wells J at 79. I would go further and say that it may include unwarranted danger to the life and limb or both of the defendant as well.”
The appeal against conviction is dismissed.
Appeal against penalty
The appellant submitted that the magistrate should have held that the offence was trifling within the meaning of s 46(3)(b) of the Act. Section 46(3) of the Act provides that the minimum period of licence disqualification for a first offence is six months imprisonment. Subsection (3)(b) provides that:
“ … the [sentence] cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence, unless in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month.”
The appellant submitted that the magistrate was in error in determining that the offence was not trifling. The appellant relied upon the magistrate’s findings that the conditions of the road were good, there was no other traffic, and that the time at which the appellant drove at excessive speed was between ten and twenty seconds before he decelerated. The appellant submitted that the offending conduct, combined with the reason for the appellant accelerating, being to get away from what he perceived to be a dangerous situation, were sufficient to constitute the offence as trifling.
I agree with the observation of Johnston J in Firth v Prestwood[9], that it is difficult to know what is meant by “trifling” in circumstances where, in order for the defendant to have committed the offence in question, he must have driven a vehicle recklessly or at a speed or in a manner which is dangerous to the public. Nevertheless, Parliament visualised a possibility that there may be instances of driving which could constitute a breach of the section, but still be characterised as a trifling offence. Johnston J considered that Parliament may have had in mind circumstances where a person drove in breach of the section because of a medical or some other emergency. In Merrill v Police[10], Perry J concluded that circumstances such as those described as “humanitarian” which might have prompted the commission of an offence cannot properly support the characterisation of driving as trifling. In Siviour-Ashman v Police[11], Doyle CJ was of the opinion that in considering whether offences can be characterised as trifling, the focus must be on the offending conduct itself. He did not exclude matters of an humanitarian nature. He concluded that the offending conduct and the circumstances in which it took place must be viewed as a whole in determining whether an offence can be characterised as trifling. Mullighan J was of the view that the conduct and the circumstances surrounding it must be viewed as a whole in determining the issue whether an offence is trifling. Besanko J favoured the approach taken by Perry J, that the court should consider only the conduct which constitutes the offence and not, in addition to that conduct, the circumstances which explain how the offence came to be committed. However, he accepted that there were many decisions of this court to the effect that the circumstances which explain how the offence came to be committed should also be considered, and he considered himself bound by authority.
[9] Supra at 433
[10] (1996) 24 MVR 555
[11] (2003) 85 SASR 23

The legislature contemplated that there may be circumstances in which an offence of driving at a speed dangerous to the public may be regarded as trifling. It is difficult to envisage how it can be said that if a person is driving at a speed dangerous to the public that the offence is trifling unless, for reasons other than the driving itself. For example, if a person is driving at a speed dangerous to the public to escape a bushfire that may amount to a circumstance which would justify a conclusion that the offending was trifling.
The reasons why a person acts in a particular way in my view is always relevant, and part of the circumstances of the offending. When the legislature imposes minimum mandatory penalties, but provides that a lesser penalty can be imposed if the offence is trifling, then it has contemplated that if there are sufficiently extenuating circumstances which explain the conduct, then the court can act mercifully by declaring the offending as trifling.
The magistrate concluded that there was nothing in the driving itself or in the circumstances which led to the appellant’s driving sufficient to constitute the offence as trifling. The offending conduct in this case was an ordinary or typical instance of offending of this kind. The fact that the appellant perceived some embarrassment or danger from other vehicles is not, of itself, sufficient to constitute circumstances which would make the offence trifling. As the magistrate rightly observed, the appellant had other options available to him, including slowing down to allow the vehicles in front of him to move a distance away to avoid the embarrassment he perceived. The appellant’s conduct was deliberate in that he accelerated beyond the speed limit to overtake other vehicles. He may have not intended to reach such a great speed. His failure to appreciate the power of his motorcycle is not a mitigating factor. It can hardly be said that his conduct was merely technical, casual or inadvertent. There were no other compelling features which would justify the characterisation of his offending as trifling.
Pre-trial conference
The appellant complains that he had been misled by the police prosecutor at a pre-trial hearing. At the hearing, the prosecutor intimated that he would not oppose a submission by the appellant that the offence was trifling. The appellant asserted that at the pre-trial hearing conference, a magistrate (who was not the trial magistrate), had expressed the opinion that he would support an application that the offence was trifling. The appellant asserted that the police prosecutor had stated that the prosecution would not oppose such an application, even if the case went to trial. As it transpired, the police prosecutor at the trial opposed the application that the offence was trifling.
I can understand the appellant, who was unrepresented, may feel aggrieved that at a preliminary stage in the proceedings a magistrate had expressed a view that he would be sympathetic to such an application and the police prosecutor had indicated that he would not oppose it. Observations made by judicial officers at pre-trial hearings are not binding and, once all the facts are known, intimations which may have been made when only some of the facts were before the court, without any evidence having been called, may turn out to no longer be appropriate. The magistrate who heard the case heard all the evidence, considered all arguments and, in my view, correctly determined the offence was not trifling. The fact that the police prosecutor and a magistrate may have made some preliminary observations prior to trial which caused the appellant to believe that an application, at the conclusion of the trial, that the offending was trifling would succeed, is not a ground for setting aside the conviction.
The appeal against sentence is also dismissed.