The Queen v Sheldon Anthony McMahon

[2000] QCA 446

[2000] QCA 446

COURT OF APPEAL

DAVIES JA

PINCUS JA

THOMAS JA

CA No 205 of 2000

THE QUEEN

v.

SHELDON ANTHONY McMAHON  Appellant

BRISBANE

..DATE 26/10/2000

JUDGMENT

PINCUS JA:The appellant was convicted after a jury trial on an indictment charging that on the 26th day of April 1999 at Brisbane in the State of Queensland he dangerously operated a vehicle on the Logan Motorway at Parkinson.  It is common ground that the appellant's motorcycle was at the relevant time being driven at 239 kilometres per hour. 

The evidence is that the Logan Motorway upon which the vehicle was being driven did have traffic on it at about the relevant time.  The offence was said to have taken place at 10.06 p.m. and there was evidence that there were 177 vehicles travelling in the same direction on that road in the previous hour and 105 in the subsequent hour; so it is by no means an untrafficked highway.

It is evident, without any expert knowledge, that at a speed of 239 kilometres per hour a vehicle has much less chance of avoiding any difficulty which may arise.  For example, the very passing of another vehicle at that speed is obviously much more hazardous than passing at the proper speed, the maximum at the time being 100 kilometres per hour.  The point which is taken depends upon the construction of the statute.  It is said, and said correctly, that the statute requires consideration of various factors in determining whether or not the driving was dangerous. 

The basis upon which it is said that there should have been evidence of the condition of the vehicle or the state of the vehicle is that there was evidence from the police giving figures as to the distance which, at that speed, a motorcycle was likely to take to brake.  The point taken on behalf of the appellant is in essence that the Crown should have adduced evidence of the condition of the vehicle and should have proved whether or not there were ABS brakes.

It appears to me that it is not the intention of the statute that in every case there must be evidence called as to the condition of the vehicle.  In some circumstances such evidence would be relevant and in some it would not.  Here, there was nothing to suggest that there was anything wrong with the vehicle.  The fact that it was capable of travelling at 239 kilometres per hour suggests it must have been in excellent condition; but the narrow point taken is simply that the Judge should have given some direction as to the absence of evidence of the sort of brakes the vehicle had and it also seems to be suggested that the Crown should have called evidence on that matter.

In my opinion, except in quite unusual circumstances, travelling at a speed so grossly in excess of the proper speed would be dangerous driving within the meaning of the statute.  When I refer to most unusual circumstances I have in mind the possibility of a very wide road with no traffic on it at all, and no traffic likely to be on it.  Even in those circumstances it would be surprising if sufficient danger were not attached to driving at such a speed. 

Here, however, there was an ordinary good road and with a reasonable amount of traffic on it.  It would have been perverse on the part of the jury to reach any conclusion other than that which they did.  It is my opinion that in the circumstances of this case the type of brakes the vehicle had was of at best marginal relevance and the learned trial Judge was right not to suggest to the jury it was a matter of any real significance.

That is, I am of the view that the verdict of the jury was plainly correct, that any other verdict was not reasonably open.  I would dismiss the appeal.

DAVIES JA:I agree.

THOMAS JA:  I agree.

DAVIES JA:The appeal is dismissed.

-----