Sprigg v Police - [2011] SASC 10

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SPRIGG v POLICE
[2011] SASC 10
Judgment of The Honourable Justice Anderson
17 February 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE - TIME FOR APPEAL AND EXTENSION OF
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - OFFENCES RELATING TO INTERSECTIONS AND JUNCTIONS
Appeal from decision of a magistrate - appellant convicted of driving without due care - aggravating circumstance being death of another driver - the magistrate sentenced the appellant to 4 months imprisonment which was wholly suspended - appeal to Supreme Court against conviction and sentence - appeal out of time - circumstances of delay being time taken for appellant to be granted legal aid - extension of time granted - whether the magistrate erred in failing to exclude record of interview - whether the magistrate erred in determining the appellant failed to drive with due care - whether the sentence was manifestly excessive.
Held: Record of interview properly submitted - appeal against conviction dismissed - appeal against sentence allowed - six weeks imprisonment wholly suspended substituted.
Road Traffic Act 1961 s 45; Australian Road Rules r 73(2)(a), referred to.
Police v Melisi (2010) 106 SASR 105; Dunsmore v Dawson (1981) 94 LSJS 1; Crispin v Rhodes (1986) 40 SASR 202; Ladlow v Hayes (1983) A Crim R 377; Stoeckel v Harpas (1971) 1 SASR 172, considered.

SPRIGG v POLICE
[2011] SASC 10
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

This is an appeal out of time by the appellant against conviction and sentence. The appellant seeks an extension of time within which to appeal. The extension is not opposed by the respondent.
Following a two-car accident on 23 August 2008, the appellant was charged with one count of “aggravated driving without due care” contrary to s 45 of the Road Traffic Act 1961 (“RTA”) and one count of “fail to give way to vehicle travelling on continuing road” contrary to r 73(2)(a) of the Australian Road Rules. The aggravating circumstance of count 1 was the death of the other driver, Mr Williams. The appellant pleaded not guilty to both counts 1 and 2.
After a trial in the Magistrates Court, the appellant was convicted of count 1. The magistrate imposed a sentence of 4 months imprisonment, wholly suspended upon the appellant entering into a bond to be of good behaviour for a term of 2 years, and disqualified the appellant’s drivers licence for the statutory minimum of 6 months.
Section 45 of the RTA provides:
45—Careless driving
(1)A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
(2)If a court convicts a person of an offence against this section that is an aggravated offence, the following provisions apply:
(a) the maximum penalty for…

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 Sprigg v Police

Details

AGLC: Sprigg v Police [2011] SASC 10
Case: [2011] SASC 10
Decision Date: 17 February 2011

CaseChat Overview and Summary

In the Supreme Court of South Australia, Sprigg appealed against a conviction and sentence imposed by a magistrate. The appellant was convicted of driving without due care and attention, resulting in the death of another driver. The magistrate sentenced the appellant to four months imprisonment, wholly suspended. The appeal raised questions about the exclusion of a record of interview, the determination of due care, and the excessiveness of the sentence.

The court considered whether the magistrate erred in not excluding the record of the interview, whether the appellant drove without due care, and if the sentence was manifestly excessive. The court held that the record of interview was properly submitted, and the appeal against conviction was dismissed. However, the appeal against the sentence was allowed, and a sentence of six weeks imprisonment, wholly suspended, was substituted.

The court found that the appellant failed to exercise due care and attention while driving, resulting in a collision that caused the death of another driver. The court acknowledged the tragic nature of the incident but concluded that the appellant's failure to see the oncoming vehicle demonstrated a lack of due care. The court also considered the nature of the junction, road conditions, and the fact that the other driver was not using headlights. The court deemed the original sentence of four months imprisonment to be disproportionate to the offence's seriousness and reduced it to six weeks imprisonment, suspended.

The final orders of the court were to dismiss the appeal against conviction, allow the appeal against sentence, and impose a sentence of six weeks imprisonment, wholly suspended, with the existing bond to be of good behaviour for two years remaining in place.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I was taken on a view of the scene. It is a somewhat tricky junction. Vehicles trying to turn right from Waterport Road onto Victor Harbor Road need to go up to the white line marking the eastern edge of the Victor Harbor Road. This means that anyone turning left from Waterport Road at the same time will have an obstructed view of the approach of vehicles from the north if there is a vehicle also waiting to turn right.The appellant’s evidence At the trial in the Magistrates Court, the appellant gave evidence that at the time of the accident the weather was dark and heavily overcast, with some drivers, including the appellant, turning on their headlights. At the time of the accident he did not have music playing in the car and was not talking to Jessica but concentrating on the road. It had been drizzling prior to the accident. The appellant told the court that he had travelled that road often, and that the intersection was a busy one. He said that on the morning of the accident he was not in a hurry. In fact, he and Jessica were early to pick up her brother from Hayborough so took Waterport Road as a detour instead of taking the main road. The appellant said that as he was driving up to the intersection he saw a white car at the intersection waiting to turn right onto Victor Harbor Road, and a few cars turning left onto Victor Harbor Road. He said that upon arriving at the intersection the cars turning left had completed their turns so he was at the front of the line, with the white car still to his right. He stopped and looked to his right, and saw cars with headlights on approaching travelling south on Victor Harbor Road. He gave way to those vehicles. The appellant said there was another car further north in the distance on Victor Harbor Road with its headlights on, approximately 100m away. The appellant agreed that he could not see directly behind the white car but that he did not need to as he had a full view of the cars approaching on Victor Harbor Road. The appellant said he allowed more cars to go past, and looked again. Having seen another car in the distance with its headlights on and seeing no cars in-between, the appellant decided there was a sufficient gap and turned onto Victor Harbor Road, at which point the collision occurred. The appellant told the court that he did not see Mr Williams’ car and did not know where that car was before the collision. He said that as he turned onto Victor Harbour Road the white car also pulled out onto Victor Harbor Road at about the same time, turning right. The appellant stated that he was paying full attention, kept a proper lookout, and was not distracted at the time. Mrs Sprigg’s evidence at trial supported that of the appellant. She too looked to the right to check the approaching traffic and saw that the road appeared to be clear, with some cars in the distance.The magistrate’s findings The magistrate made no adverse findings as to the credit of the appellant or Mrs Sprigg. He accepted that the appellant looked to the right for oncoming traffic before turning onto Victor Harbor Road. He accepted that the appellant did not see Mr Williams’ vehicle before making the turn.

Decision

Reasons for decision

ANDERSON J

The new ground of appeal is set out earlier at [7]. In my view it is pure speculation. There is insufficient information concerning the deceased and his use of the drug to enable any conclusions to be drawn. It is not possible to draw the conclusion that Mr Deegan invited, namely, that the taking of the drug had an effect on Mr Williams’ driving. I reject this ground of appeal.Conclusion I have said that I am unable to accept the hypotheses put by Mr Deegan which he submits is consistent with the appellant’s innocence. Objectively speaking, the level of due care expected of a careful driver at a busy intersection dictates that Mr Williams’ car should have been seen, even given the evidence of the weather and road conditions at that time of day. I consider this to be the objective view, regardless of it having been a dark morning on 23 August 2008 and evidence put before me that Mr Williams’ car headlights were off. This is not to say that the appellant did not look to his right, or keep a lookout. I accept that he checked his right as he said. But had he exercised due care and attention, he should have seen Mr Williams’ car. I agree with the magistrate that it was there to be seen. I have dealt with the grounds of appeal in a general way because they all come back to this point. Is there any reasonable explanation for the appellant not seeing the vehicle? I agree with the magistrate that there is no reasonable explanation. This collision was a tragic one, resulting in the death of Mr Williams. It must serve as a reminder to us all that actions on the road which we take every day, some many times a day, cannot be taken for granted or performed without the due care with which we may have exercised when we first started driving. I have considerable sympathy for the appellant. The accident and the death of Mr Williams have affected him. He is obviously a good and cautious driver. He did everything right at the junction but simply failed to see Mr Williams’ vehicle. It may have been from a combination of factors, including the dark background, the weather and the fact that Mr Williams’ headlights were not operating. However, he failed to see the oncoming vehicle and therefore, in my view, he drove without due care. I therefore dismiss the appeal with respect to conviction. I agree with the magistrate that, in the circumstances of this accident, count 2 was subsumed in count 1. In relation to the sentence imposed upon the appellant, the minimum licence disqualification was imposed. Because of the nature of the junction and the road conditions at the time, together with the fact that Mr Williams drove without headlights, the offence is at the lower end of the scale of seriousness. The magistrate sentenced the appellant to 4 months imprisonment but suspended the sentence. The appellant is subject to a bond to be of good behaviour for 2 years. I consider 4 months imprisonment is not representative of an offence at the lower end of seriousness. In all the circumstances I consider that the period of imprisonment ordered should be reduced. I impose a sentence of 6 weeks imprisonment, suspend it, and leave the bond as it is.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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