Van Der LAAN v Warchot - [2006] WASC 229

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: VAN DER LAAN -v- WARCHOT [2006] WASC 229

CORAM: HASLUCK J

HEARD: 15 SEPTEMBER 2006

DELIVERED : 4 OCTOBER 2006

FILE NO/S: SJA 1056 of 2006

BETWEEN: DESMOND VAN DER LAAN
Appellant
AND
DAVID WARCHOT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R B LAWRENCE
File No  :RO 5641 of 2005

Catchwords:

Criminal law - Driving offence - Dangerous driving causing bodily harm - Elements of offence - Nature of driver's duty upon entering intersection - Need to ensure that road is clear of oncoming traffic - Relevance of topography and visibility - Finding that appellant failed to exercise sufficient care upheld on appeal - No error in assessment of credibility of witnesses - Turns on own facts

Legislation:

Road Traffic Act 1974 (WA), s 59A(1)(b)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J G Kitto
Respondent: Ms D E Quinlan

Solicitors:

Appellant: Kitto & Kitto
Respondent: State Solicitor

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

Becker v Roberts (1997) 27 MVR 193
Carden v The Queen (1992) 8 WAR 296
Garrett v Nicholson (1999) 21 WAR 226
Glennon v The Queen (1994) 179 CLR 1
Harling v Hall (1997) 94 A Crim R 437
Kaighin v The Queen (1990) 1 WAR 390
M v The Queen (1994) 181 CLR 487
Magennis v Gault, unreported; SCt of WA; Library No 1400; 4 June 1974
Richardson v Price [1971] WAR 177
Skerritt v O'Keefe [1999] WASCA 183
Verhoeven v Ninyette (1998) 101 A Crim R 24
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Warren v Coombes (1979) 142 CLR 531

Case(s) also cited:

Hancock v Cox (1993) 19 MVR 137
Isidoro v May [2000] WASCA 152
McLuckie v Williams (1995) 82 A Crim R 118
R v Coventry (1938) 59 CLR 633
R v Gosney [1971] 2 QB 674
R v McDonald [2000] WASCA 336
Smith v The Queen [1976] WAR 97
State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Turner v Hughes [2000] WASCA 276

HASLUCK J:

Introduction

The appellant, Desmond Neville Van Der Laan, obtained leave to appeal against a conviction arising under provisions of the Road Traffic Act 1974 (WA). The appeal concerns the nature of dangerous driving.
The appellant was charged pursuant to a prosecution notice that on 12 May 2005 at Kwinana Beach he drove a motor vehicle on a road, namely, Ocean Street, in a manner that was, having regard to all the circumstances, dangerous to the public or any person, and was subsequently involved in an incident occasioning bodily harm to Ronald Graeme Bryant contrary to s 59A(1)(b) of the Road Traffic Act.
Section 59A(1)(b) of the Act provides that a driver commits an offence if a motor vehicle driven by the driver is involved in an incident occasioning bodily harm to another person and the driver was, at the time of the incident, driving the 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.
The offence with which the appellant was charged is known as dangerous driving causing bodily harm. Section 59A(4) provides that an accused may be convicted of alternative offences pursuant to s 61 (dangerous driving) and s 62 (careless driving). However, the appellant has not appealed on the basis that he should have been convicted of an alternative offence.
The matter was brought on for hearing before Magistrate Lawrence at the Magistrates Court at Rockingham on 25 May 2006. The appellant was represented by counsel and entered a plea of not guilty to the charge.
The matters in controversy concerned a collision at the intersection of Ocean Street and Patterson Road near Kwinana Beach which occurred while the appellant, as the driver of a blue Commodore sedan, who was in Ocean Street, sought to turn right into Patterson Road and proceed north. It will therefore be useful to begin by looking at the road configuration in question. In doing so, I will draw principally upon certain police photographs that were adduced in evidence by the prosecution at the hearing.

The scene of the incident

It appears from the photographs that Patterson Road is a dual carriage way with two lanes proceeding south to Rockingham which are separated from the two lanes proceeding north by a median strip.
A driver entering Patterson Road from Ocean Street, with a view to turning right and proceeding north will be obliged to take account of a broken white line denoting an obligation to give way, cross the two lanes comprising the south bound carriage way heading south to Rockingham, cross the median strip via a short section of road or "box" provided for that purpose, and turn right into one of the two lanes comprising the north bound avenue of Patterson Road.
This configuration is clearly depicted in the photograph principally under discussion at the hearing before me (TS 8). That photograph was taken from a position slightly north of the point at which Ocean Street enters the south bound avenue, with the photographer being positioned in the centre of the two lanes, and looking south to Rockingham. It is apparent from that photograph, and from evidence to that effect at the hearing, that there is a service station on the southern corner of Ocean Street and Patterson Road, which provides a point of entry into Ocean Street, so that a driver who has refuelled his vehicle can join Ocean Street and proceed towards Patterson Road.

The nature of the evidence

At the commencement of the hearing at first instance counsel for the appellant made certain concessions to the effect that his client (the appellant) was driving a Commodore sedan; he left Ocean Street to turn right into Patterson Road which was the priority road; a motorcycle was proceeding south along Patterson Road; a collision ensued between the two vehicles. Importantly, the appellant was prepared to admit that he was the driver of the Commodore, that he was attempting to turn right into Patterson Road, that injuries caused to the rider of the motorcycle constituted bodily harm.
The prosecutor led evidence from the rider of the motorcycle, being Ronald Graham Bryant (spelt Bryant in the transcript, but Brient in the prosecution notice). Mr Bryant said that on Thursday, 12 May 2005 at about 4.30 pm he was travelling home from work on his motorcycle, being a Harley Davidson model which had been in his possession for about 13 months. He had been riding motorcycles for 35 years. Mr Bryant said that it had been raining but the rain had eased up a bit.
Mr Bryant said that the lights on his motorcycle were on and that he was wearing a weatherproof jacket with black sleeves and fluorescent yellow across the shoulder pads. He was travelling in the right hand or outside lane of the two lanes comprising the south bound avenue of Patterson Road; that is, the lane closest to the median strip.
He was in that position as he headed towards the intersection with Ocean Street because there were vehicles in the left lane indicating that they intended to turn left into Ocean Street. He said that just as he was entering the intersection a Commodore appeared in front of him from Ocean Street and started going through the intersection.
Mr Bryant said that he tried to stop but did not have enough time. He applied his brakes but because it had been raining the road was slippery and the back wheel locked up and just kept sliding. He skidded about 20 feet (or about 6.1 metres) from the time he saw the Commodore to the moment of collision. He struck the front right side of the car. He was travelling at about 70 to 75 kmh which was within the 80 kmh speed limit that goes up to 90 kmh just past the service station (as appears from the photograph adduced in evidence mentioned earlier).
Under cross‑examination Mr Bryant said that he was going at about the same speed as the cars in the left hand lane before any of the cars in the left lane commenced to turn. Having travelled along this section of the road for some years, and being familiar with the traffic patterns, he had made a lane change into the right lane of the south bound avenue well before the intersection because there was a procession of cars in the left hand lane.
The prosecution presented evidence also from Ian Everett Atkinson who at that time was a fencing contractor. He had called in for some fuel at a service station on the southern corner of Ocean Street and Patterson Road and, having done so, found himself in Ocean Street immediately behind the appellant's vehicle as the appellant sought to turn right into Patterson Road. Mr Atkinson said in his evidence‑in‑chief that: "The car in front of me saw, what I believe was, a gap, took off and the next thing I saw was some smoke off a motorbike tyre or a motorbike … because he was braking hard". He said that as far as he could remember the gap was about 80 metres to "… a whole bunch of traffic" that was coming through. The motorcyclist was already braking when Mr Atkinson first saw him. While looking at the photographs, Mr Atkinson recalled a broken white line separating Ocean Street from the two south bound lanes of Patterson Road.
Under cross‑examination Mr Atkinson agreed that as the appellant's vehicle ahead of him pulled away he was contemplating following it into Patterson Road to make his turn also. As far as he could see there was nothing to stop him making that manoeuvre.
The prosecution led evidence also from Police Constable Warchot who attended at the crash site and took photographs of the scene. He was not cross‑examined about his enquiries into the matter. The prosecution case was then closed.
The appellant said in evidence that he was returning home from work, and having pulled into the Peak Service Station, he was in Ocean Street as he approached the intersection with Patterson Road.
The appellant gave this account of what happened as he waited at the Ocean and Patterson intersection ready to turn right:
"…I waited until there was a clear gap in the traffic, enough for me to be able to make it through the intersection, and when I believed there was a clear gap - - a clear gap in the traffic I proceeded to make my way through the intersection. Approximately half way through I spotted a motorcycle that was in the right hand lane. I braked but the motorcycle came in contact with the front corner of my car.
All right, and did you take any action after that to assist the motorcyclist? - - - After the accident occurred I called the ambulance and a number of people stopped and helped the motorcycle rider off the road.
All right, and some police attended? - - - Yes."
Under cross‑examination the appellant said that he had used the intersection a number of times. He could recall a broken white line depicting that the person on Ocean Road was to give way. He could not recall any other cars turning left into Ocean Road from Patterson Road. He said that the motorcycle rider (that is, Mr Bryant) was at least one car's length away from him, possibly slightly further, when he first saw him on his right hand side. The appellant said: "I saw him as I was - - oh, probably at least half way through the intersection before I saw him". He was upright on the motorbike at that time.
When it was put to the appellant that "Basically you just didn't see this guy?", he responded: "No". The appellant agreed that at the moment of collision there was nothing obstructing the appellant's view. The appellant was "… in the middle of the intersection" so he had a clear view of Mr Bryant. He said that there was enough distance between him and the south bound vehicle in the left lane to make it through the intersection; that is, to "… go across two lanes of traffic to make it to the median strip". The appellant agreed that at that time when people were travelling home it was "… a pretty busy intersection" and that, at the moment of collision, "… my vehicle would have been across both lanes of traffic".

The reasons for decision

In his reasons for decision the learned Magistrate commenced by describing the charge and noted that the onus was upon the prosecution to satisfy him beyond reasonable doubt of each element of the offence in question. He said that the question for determination was whether he was satisfied beyond reasonable doubt that the appellant's manner of driving constituted what is commonly known as "dangerous driving in the circumstances". He noted also that there was no dispute about certain aspects of the manner including that Ocean Street terminated at the intersection with the dual carriage way comprising Patterson Road. He referred to Mr Bryant's evidence that the latter was a straight stretch of road, with clear visibility, and with two vehicles travelling in the left hand lane, indicating to turn left into Ocean Street.
The Magistrate noted also that the appellant did not disagree with Mr Bryant's version of the incident, save that he simply did not see Mr Bryant. His Honour said that the appellant's evidence was supported to some extent by that of Mr Atkinson who was in a vehicle behind the appellant. His Honour then found on the totality of the evidence that the appellant did enter Patterson Road and the collision did take place as was described by Mr Bryant.
His Honour went on to hold that there was a duty upon the appellant to give way to the traffic travelling on Patterson Road and that it was incumbent upon him to exercise his duty to ensure that it was safe to enter Patterson Road. If necessary, he would have to stop for some period in order to determine that it was safe to enter and did not endanger other road users on Patterson Road. His Honour found that there were no impediments to the clear visibility to the appellant's right hand, albeit that there were vehicles travelling in the left hand lane of Patterson Road, intending to turn left.
His Honour then made these observations (TS 32):
"It was incumbent upon him to ensure that it was safe to enter Patterson Road, even though those vehicles existed, before doing so and when viewed objectively he failed to do so and thereby endangered other road users.
It was not merely a matter of failed to exercise care, he had a duty and a strict duty to ensure that there was no potential danger by him entering the road as he did and in doing so he was at fault and he placed the safety of Mr Bryant in … in jeopardy and accordingly he caused the incident."
The learned Magistrate then held that he was satisfied beyond reasonable doubt that the appellant did commit an act of driving which constituted dangerous driving and caused the injuries in question. He convicted him of the charge and proceeded to impose a penalty.
I must digress briefly at this point to mention that at a later stage there was a difference of opinion as to whether the penalty had been correctly imposed. However, I was informed at the hearing before me by counsel on both sides that the matter in issue had been corrected pursuant to s 37 of the Sentencing Act 1995 (WA). Accordingly, I will not dwell upon this point and will proceed upon the basis that the matter before me simply is an appeal against conviction.

Appeal

On 13 June 2006 the solicitors for the appellant lodged notice of appeal. I understand that with a view to avoiding unnecessary costs the appellant's solicitors arranged for the prosecutor to serve the notice by post, such service being deemed to occur on 17 June 2006. The transcript was served in the same manner on 22 June 2006, as soon as it became available from the Court. However, it was not until 12 July 2006, outside the prescribed time limits, that a notice of respondent's intention was filed and served indicating that the respondent intended to take part in the appeal.
An issue arose at the hearing before me as to whether, in these circumstances, leave should be allowed to the respondent to be heard on the grounds that the respondent and its legal advisers had not offered any sufficient explanation as to why the rules had not been complied with and as to the delay. It was said that the affidavit of Adrian Robert Jones sworn 5 September 2006, being an affidavit sworn by an appeals law clerk employed in the State Solicitors Office, was not sufficient to excuse the delay because it dealt essentially with events after 11 July 2006.
After hearing argument about this matter I was of the view that leave should be allowed, with the result that counsel for the respondent was permitted to speak to and develop the lines of argument reflected in the respondent's outline of submissions dated 13 September 2006. I note in passing also that during the course of argument at the hearing before me the appellant applied for leave to add a further ground of appeal to the grounds of appeal set out in its notice of appeal dated 12 June 2006. Accordingly, the grounds of appeal referred to below reflect the appellant's final position.

Grounds of appeal

The appellant obtained leave to appeal before McKechnie J on 19 July 2006. The grounds of appeal before me (as amended by the addition of par 5) were as follows:
"1.Magistrate erred in fact in finding there was no impediment to the appellant's ability to see the motorcycle, when all the available evidence, (or in the alternative, some uncontested evidence), was to the effect that it could not be seen by the appellant or by a motorist in the same position as the appellant;
2.Magistrate erred in law and in fact in finding there was no impediment to the appellant's ability to see the motorcycle, when this finding was inferred from the evidence, but an equally available inference was that the appellant could not see the motorcycle;
3.Magistrate erred in law and in fact in finding the appellant failed to exercise the required standard of care, when the evidence disclosed the appellant was exercising the required standard of car and the accident was caused solely by an impediment to the appellant's ability to see the motorcycle;
4.Magistrate erred in law by finding the accident was caused by a lack of care by the appellant, however a competing inference was that the accident could also occur without fault on the part of the appellant.
5.Magistrate erred in law by failing to assess the credibility of any of the witnesses and to make findings as to whether their assertions of what could be seen should be accepted."
It will be useful now to look at certain legal principles and decided cases bearing upon an appeal of this kind and the issues before me.

Legal principles

Appeals from courts of summary jurisdiction were formerly governed by the Justices Act 1902 (WA) but are now covered by Pt 2 of the Criminal Appeals Act 2004 (WA). By s 4 of the latter Act the Supreme Court may dismiss or allow the appeal, or set aside or vary the decision, or remit the case for rehearing. Further, if the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the applicant. By s 9, an appeal court must decide the appeal on the evidence and material that were before the court of first instance.
A Magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226.
In Garrett's case (supra) the Full Court was dealing on appeal with findings made by a Magistrate. It is apparent from the reasoning of the Court that in such a case there was no requirement for the Magistrate to say why he was impressed with the appellant's evidence. Also, while the learned Magistrate had only referred to the evidence of one prosecution witness, where a second prosecution witness had testified in similar terms, it was implied that the doubt created by the appellant's evidence was sufficiently strong to cause the learned Magistrate not to act on the evidence of either prosecution witness. Moreover, in choosing not to act on the prosecution evidence, there was no requirement for the learned Magistrate to make express findings as to the credibility of the prosecution witness.

Owen J observed at [74] that it is necessary to look at the reasons as a whole to see if they give the sense of what was intended in a way that achieves the results referred to earlier. It is sometimes the case that by dissecting the reasons line by line, word by word, the reader loses the sense of what is conveyed by a particular passage. It is often the case that the true sense can be gleaned only by looking at the passage in the context of the whole. In this way something which appears at first glance to be a material omission may be adequately explained.
It follows from these observations that in certain cases it will not be necessary to dwell at length upon matters of credibility or to say explicitly that the evidence of one witness is to be preferred. This will be so especially in cases where the areas of disagreement between the witnesses on opposing sides are limited. There will be many cases in which the assessment of the witnesses will be apparent from the tenor of the Court's reasoning, considered as a whole.
In essence, the principle is clear: the Court must find sufficient facts upon which to rationally base a decision and expose the reasoning which leads to the ultimate conclusion. But the sufficiency of fact‑finding will vary widely with the exigencies of each case: Skerritt v O'Keefe [1999] WASCA 183 at [146] to [147].
In Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Ipp J made these observations at 448:
"It is correct that primary findings of fact will not ordinarily be interfered with, provided there is evidence to support those findings, and provided the appellant fails to establish that the court below has not taken proper advantage of seeing and hearing the witnesses. Nevertheless, when findings as to the primary facts are attacked, and the inferences drawn from the primary facts are said to be wrong, it remains the task of an appellate court in an appeal by way of rehearing to embark on an analysis of the evidence, documents and objective facts in order to determine the issues afresh: see Wing Luck Foods v Lay Choo Lim [1989] WAR 358."
Ipp J went on to say in Vrisakis (supra) at 448 that a decision of a court of summary jurisdiction is not regarded with the same sanctity as the verdict of a jury. If it is argued that there was inadequate evidence to justify a conviction, and the appellant identifies particular findings which, it is submitted are not warranted by the evidence, it is the task of the respondent to provide, in turn, an analysis of the transcript which refers to the evidence which, in the respondent's submission, bears out the findings: see Carden v The Queen (1992) 8 WAR 296.
The finding of guilt is not to be reached simply by rejecting the case put forward by the accused. The Court has to positively believe beyond reasonable doubt the evidence presented by the prosecution: Harling v Hall (1997) 94 A Crim R 437.
Where the trial Judge's conclusions have been based upon inferences, which inferences are drawn from unchallenged facts already established, Australian appeal courts have repeatedly said that an appeal court is in as good a position as the trial Judge at first instance to draw or assess the required inferences for itself: Warren v Coombes (1979) 142 CLR 531.
If the appellate court, having made its own independent assessment of both the sufficiency and quality of the evidence, is left with a reasonable doubt, then that is a doubt which the primary court ought to have had and the appellate court will usually provide relief, especially where findings depend on credibility: M v The Queen (1994) 181 CLR 487; Glennon v The Queen (1994) 179 CLR 1.
The relief may take the form of remitting back to the court below unless the appellate court considers that no substantial miscarriage of justice has occurred. The task is to balance the public interest and the conviction of a wrongdoer, the interests of an accused person, and the pragmatic considerations of costs and efficiency in the administration of justice. Where the error is fundamental, the interests of justice may be best served by quashing the conviction and sentence, and substituting a verdict of acquittal: Verhoeven v Ninyette (1998) 101 A Crim R 24

Road traffic cases

In Kaighin v The Queen (1990) 1 WAR 390 the Full Court reviewed the decided cases bearing upon a charge of the present kind. The appellant was charged under s 59(1) of the Road Traffic Act 1974 (WA) with driving that was, having regard to all the circumstances, dangerous to the public or to any person and which thereby caused the death of his wife who was a passenger in the vehicle driven by the appellant. In that case the conviction was quashed upon the grounds that there was a particular need for the jury to be directed as to the true issues before them, to the differing versions of the prosecution and the defendant, and to whether, if a particular version was accepted, they were able to be satisfied that dangerous driving had been established.
The Full Court made these observations at 395:
"It seems to us that the following propositions can be derived from the above authorities and a construction of s 59(1) of the Road Traffic Act:
(a)An offence is committed under s 59(1) when a person drives a motor vehicle in a manner dangerous to the public and thereby causes death or grievous bodily harm (ie there is a causal link between the dangerous driving and the death or grievous bodily harm).
(b)Negligence is not an element of dangerous driving; negligent driving is not necessarily dangerous driving; thus failure to keep a proper look out on a road on which there is no other traffic and there are no person in the vicinity is not dangerous driving.
(c)For driving to be 'dangerous' within the meaning of s 59(1) it must in reality, and not speculatively, be actually or potentially dangerous to the public or another person.
(d)A momentary lapse of attention may constitute dangerous driving.
(e)The test as to whether driving is dangerous is objective.
(f)Section 59(1) does not exclude a defence based on absence of fault, including a defence based on s 25 of the Criminal Code, or a defence based on the conduct of another person."
The application of these principles can be illustrated by reference to a number of other decided cases. For example, in Richardson v Price [1971] WAR 177 the defendant was convicted of failing to give right of way to a vehicle approaching an intersection. He came into collision with the vehicle when he was in the course of turning right into another road. The vehicle with which he collided was proceeding in the opposite direction. It drove over the crest of a hill before coming into collision with the defendant's vehicle. Because of the topography, the appellant could not see the oncoming vehicle until he was well into his right hand turn, by which time it was physically impossible for him to give way.
The appellant's appeal against conviction succeeded. The Court held that although the test to be applied in determining whether or not the relevant regulation had been breached was objective, it was a test to be judged from the point of view of the defendant and what that driver knew or reasonably ought to have known of the presence of another vehicle having right of way.
However, this may be contrasted with Magennis v Gault, unreported; SCt of WA; Library No 1400; 4 June 1974. In that case, the complainant appealed against an acquittal of the offence of failing to give way to the right when a driver is approaching or has arrived at an intersection. The defendant drove his vehicle to the intersection very slowly indeed. He looked to the right and saw two vehicles approaching. Both were indicating a left turn and both made that turn. As they did so, the defendant entered the intersection where his vehicle came into collision with a third vehicle which came from his right, following and obscured by the other two. The appeal against acquittal was allowed as Burt J was of the view that the driver turning right had infringed the law.
His Honour referred to Richardson v Price (supra) and continued at 4 in these terms:
"This is not a case of that type at all; it is a case in which the person in the position of the respondent can see traffic approaching on his right; he counts two motor cars, and assumes that to be the only traffic approaching on his right. I would have thought that a person situated as he was situated should not enter the intersection until that traffic has cleared so that he can see that it is safe for him to do so. And that is only basic to the view that in a road which is carrying traffic there is a reasonable possibility that there will be traffic and other cars coming behind the cars that he can see. There is nothing fanciful about that; it is a matter of common driving sense – common sense applied to driving. If you look, and you see a vehicle on the right, and you cannot see behind that, then if you enter the intersection prior to seeing that it is clear to do so, then should there be a car behind the car that you can see, in my view you have failed to give way."
I am conscious that these two cases, Richardson (supra) and Magennis (supra), as I was reminded by counsel for the appellant, were not concerned with offences of precisely the same kind as the offence with which the appellant in the present case was charged. Nonetheless, the line of reasoning, and the considerations mentioned in those cases, bear upon the circumstances of the present case. These cases indicate that topography and visibility can be relevant to the requirements of the situation and they point to what is thought to constitute commonsense applied to driving.
It was against the background of these cases that Murray J in Becker v Roberts (1997) 27 MVR 193 considered an appeal in a matter arising under s 59A(1) of the Road Traffic Act, being a decided case that resembles the present case both as to the statutory provision under notice and the circumstances of the matter.
In the Becker case (supra) the defendant approached a major road which had two lanes on either side divided by a wide nature strip. The defendant halted at the stop sign facing him. He saw a truck or similar vehicle approaching from his right. Its trafficator indicated it was turning to its left. When satisfied that the truck was turning left, the defendant moved into the intersection intending to turn right across the dividing strip. He failed to see a panel van coming in the same direction as the truck and going through the intersection in the lane next to the dividing strip. The defendant did not see the panel van until they collided. His view of the panel van had been obscured by the truck. The driver of the panel van was injured. The defendant was charged with dangerous driving causing bodily harm. On appeal, Murray J held that a clear act of dangerous driving was established; the defendant was at fault in proceeding into the intersection when his view of a possible other vehicle coming on his right was obscured by the truck turning left.
Murray J observed at 195 that a conclusion of dangerous driving will be drawn whenever the vehicle is being driven in such a way as to seriously depart from the way in which it ought properly to be driven in accordance with the rules of the road, so as to create at least a real potential for some other person who may be on or in the vicinity of the road to be endangered. It is also clear that for the driver to commit the offence of dangerous driving, the circumstances must be such as to demonstrate fault on that persons part.
His Honour said further at 198 that if the driver was not in fact aware that there was a portion of the carriageway behind an oncoming vehicle, and indeed a growing proportion, which he could not see as the vehicle approached him, he ought reasonably to have been so aware. He was at fault in looking to the left and proceeding into the intersection before there was no such area of concealed road which might contain an oncoming motor vehicle. He need only have waited a few moments. He was at fault in not doing so. It was an infraction which demanded the objective conclusion that his driving was dangerous.
Let me now return to the circumstances of the present case.

Conclusion

It will be apparent from my review of the evidence given at the hearing before the learned Magistrate that there was a good deal of common ground between the parties as to what occurred on the day in question. Indeed, the learned Magistrate said that the appellant did not disagree with Mr Bryant's version of the incident, save that he did not see Mr Bryant. Accordingly, as to Ground 5 of the appeal, when the reasons for decision are looked at as a whole, I am not persuaded that there is any real force in the suggestion that the Magistrate erred in failing to assess the credibility of the witnesses. Quite clearly, he proceeded from the premise that the complainant, Mr Bryant, was a reliable witness, and there was no need to dwell upon this aspect of the matter because the other witnesses were viewing the scene from a different vantage point. Moreover, in essence, they did not contest Mr Bryant's account of what occurred. The crucial findings turned on what could be seen from the appellant's vantage point and the steps to be taken by a prudent driver in the light of what could be seen. That required the Magistrate to determine whether any inferences could be drawn from the fact of the collision and his findings as to what could be seen and what the appellant did. In other words, this was not a case that turned upon issues of credibility, and it is therefore not surprising that the Magistrate did not dwell upon such matters. There was no evidence standing in the way of a finding by the learned Magistrate that there was no impediment to visibility in respect of what appears from the photographs to be a straight stretch of road.
The appellant's case on appeal proceeded from the premise that if there was evidence before the Court from the appellant himself that he did not see the complainant's motorbike until shortly before the collision then this permitted a finding to be made, which should have been made, that he could not see the oncoming motorcycle until it was impossible to avoid collision, and that therefore there was an absence of fault on the part of the appellant. However, it does not follow that because the appellant "did not see" the motorcycle he "could not see" the oncoming motorcycle. In the absence of direct evidence from the appellant in rebuttal, it was open to the Magistrate to find, as he did, that there was no impediment to visibility from the appellant's vantage point in respect of what appears from the photographs to be a straight stretch of road.
I note in passing that in weighing up the evidence the Magistrate was entitled to take account of the appellant's evidence that he did not see other vehicles in the left hand lane indicating that they were about to turn left into Ocean Street. When the appellant's testimony in that regard was compared to the Bryant and Atkinson evidence that there were vehicles in the left hand lane, the comparison was bound to weigh against the appellant and point to a conclusion that he did not see the motorcycle approaching in the right hand lane until the last moment because he was looking elsewhere or otherwise due to a momentary lapse of attention.
In the circumstances, and having regard to the way in which the accident happened, it was clearly open to the learned Magistrate to infer that the appellant was at fault in commencing to enter the intersection before having satisfied himself entirely that the intersection would be clear of oncoming traffic at the time he commenced to cross the two south bound lanes. The appellant's own evidence and the nature of the topography pointed to a conclusion that the complainant was in close proximity to the intersection at the time the appellant commenced his crossing of the intersection with a view to turning right into the north bound avenue of Patterson Road.
To my mind, the reasoning and the outcome in Becker v Roberts (supra) weigh against the appellant's case. It was open to the Magistrate to find that the defendant was at fault in proceeding into the intersection without having taken sufficient precautions to ensure that there was no oncoming traffic about to enter the intersection. Implicit in the Magistrate's finding is that even if the evidence of the appellant were to be accepted, his failure to see an oncoming motorcycle that must have been in close proximity to the intersection was due to a lapse of attention on the part of the appellant. This allowed for a finding that he was at fault. The Magistrate's finding that it was incumbent upon the appellant to ensure that it was safe to enter, and was at fault in finding to do so, was in accord with the legal principles set out in the decided cases and consistent with the evidence before him.
I have dealt with Ground 5 of the appeal. However, let me now apply these general observations to the remaining grounds.
As to Ground 1, it follows from my general observations that the prosecution evidence was capable of supporting a finding that, by failing to give way to oncoming traffic, the appellant objectively did not drive in a manner that is expected of a competent and careful driver. The evidence of the complainant and the evidence of Mr Atkinson was sufficient to establish that there was no impediment to the appellant's ability to see the motorcycle. As it happened, the appellant failed to exercise sufficient care. The Magistrate did not err.
As to Ground 2, in the absence of evidence to the contrary, it was open to the Magistrate to infer from the evidence as a whole that there was no impediment to the appellant's ability to see the motorcycle because the road was straight and clear. The evidence of the appellant himself was to the effect that he could not recall other cars turning left into Ocean Street. The evidence given by the complainant in that regard was uncontradicted. It follows from these considerations and my general observations that the Magistrate did not err.
As to Ground 3, it follows from my general observations that, in my view, the learned Magistrate did not err in law in finding that the appellant failed to exercise sufficient care in circumstances in which he entered the intersection at a time when the oncoming motor cycle was in close proximity to the intersection.
As to Ground 4, inherent in the learned Magistrate's finding was a conclusion that the appellant was at fault in not having exercised sufficient care before entering the intersection.
Accordingly, for these reasons, I consider that the appeal against conviction must be dismissed.