Van Vugt v Wilson
[2020] WASC 85
•16 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: VAN VUGT -v- WILSON [2020] WASC 85
CORAM: HALL J
HEARD: 3 SEPTEMBER 2019
DELIVERED : 16 MARCH 2020
FILE NO/S: SJA 1036 of 2019
BETWEEN: MICHAEL WILLIAM VAN VUGT
Appellant
AND
SONIA WILSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE T WATT
File Number : JO 4956 of 2018, JO 4957 of 2018
Catchwords:
Criminal law – Appeal against conviction – Careless driving causing death – Careless driving causing grievous bodily harm – Whether appellant driving too close to car in front – Expert evidence as to safe following distance – Whether magistrate misapprehended the expert evidence – Whether verdicts unreasonable or cannot be supported having regard to the evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 30(3)
Road Traffic Act 1974 (WA), s 59BA(1)
Result:
Extension of time granted
Leave to appeal on grounds 1 and 2 granted
Leave to appeal on ground 3 refused
Appeal allowed
Convictions set aside
Matter remitted to the Magistrates Court for a retrial before a different magistrate
Category: B
Representation:
Counsel:
| Appellant | : | Mr S Vandongen SC |
| Respondent | : | Mr T E Pontre |
Solicitors:
| Appellant | : | J D Hawkins |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Geneff v Townsend [1970] WAR 20
Illich v Garvey [2001] WASCA 236
Lait v Magden (1992) 16 MVR 72
Lumley v The Police [2007] WASC 189
Owaiti-Zadeh v Gill [2012] WASC 465
The State of Western Australia v Olive [2011] WASCA 25
Wells v The State of Western Australia [2017] WASCA 27
HALL J:
Summary
The appellant was convicted after trial in the Magistrates Court of one count of careless driving causing death and one count of careless driving causing grievous bodily harm, both contrary to s 59BA(1) of the Road Traffic Act 1974 (WA). He was fined $8,000 on the first count and $2,500 on the second count and was disqualified from holding a drivers licence for a total period of 12 months. He seeks leave to appeal against his convictions.
The charges arose out of an accident that occurred on the Mitchell Freeway on the afternoon of 26 December 2017. The appellant was driving his vehicle in a northerly direction in the right-hand lane. His partner and their young child were in the rear seats. Ms Doreen Rees was also driving north in her vehicle in the same lane. She was alone in her car and some distance ahead of the appellant. There were two cars between the appellant's vehicle and that of Ms Rees. For reasons unknown Ms Rees slowed and stopped her car; the two vehicles immediately behind her moved into the centre lane and drove past. The appellant's vehicle collided with that of Ms Rees resulting in catastrophic injuries to her. Ms Rees died in hospital the following day. The appellant's partner suffered grievous bodily harm.
The only real issue was whether the appellant was driving without due care and attention. One of the factors relied on by the prosecution was that it was alleged that the appellant was driving 'far too close' to the vehicle immediately in front of him.[1] The defence called an expert crash consultant, Mr Robert Davey. Mr Davey's evidence included an assessment of a safe travelling distance, in particular what would be a reasonable and prudent distance for the appellant to be travelling behind the moving car in front of him. Mr Davey referred to a two second travelling distance and that such a distance was reasonable in circumstances where it was likely that the appellant would have been unable to see the stationary vehicle until the car in front of him moved. Mr Davey concluded that it would be possible for the appellant to have been travelling at a safe speed and distance behind the car in front of him and for the collision with Ms Rees' car to have nonetheless occurred, because there was insufficient time for the appellant to stop once he became aware of the stationary vehicle.
[1] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 4 February 2019, 14.
There are three grounds of appeal. In essence, the first two grounds assert that the learned magistrate misapprehended the evidence of Mr Davey. The appellant submits that the magistrate discounted the evidence of Mr Davey in regard to a safe following distance because she was of the view that it was irrelevant in circumstances where a collision occurred with a stationary object. The third ground of appeal is that the verdicts were unreasonable or cannot be supported having regard to the evidence. For the reasons that follow I have come to the conclusion that the first two grounds must succeed. However, the third ground cannot succeed. Accordingly, the appeal must be allowed, the convictions set aside and the matter remitted for a retrial.
The prosecutor's opening
The essential issue at the trial was whether the appellant had failed to show due care and attention in his driving. In opening the case the prosecutor said:
As the accused came up behind Ms Rees there were two other vehicles separating the accused's Aurion and Ms Rees' Getz in that lane. The accused was quite close to the rear most of those two vehicles with his cruise control now set at 100 km per hour. Just prior to the Whitfords Avenue exit Ms Rees slowed and then stopped her vehicle within the right lane.
The accused was still immediately behind the two other vehicles which both then moved into the second lane to avoid Ms Rees' stationary vehicle. When the accused saw the Getz he failed to pay sufficient attention to the speed at which he was approaching and given how close he was to her vehicle. As a result of his failure to appreciate how rapidly the two vehicles were converging he also failed to realise that immediate and urgent attention was required to avoid a collision.
At no point did the accused disengage the cruise control and his vehicle continued to approach the Getz at 100 km per hour. … Prior to coming behind the two vehicles, which were behind the Getz, the accused had also failed to monitor the position of other vehicles around him. His vehicle was now so close to the Getz by the time he looked back to the front the collision between the two vehicles was inevitable.
The accused Aurion hit the Getz without slowing with sufficient force to cause the Getz to spin across three lanes of traffic before coming to rest on the left-hand road shoulder of the freeway.
…
Stated more precisely … the prosecution case is that by failing to pay proper care and attention in all the circumstances the accused was driving far too close to the vehicle immediately in front of his. … He was also driving in this position with the cruise control engaged whilst failing to adequately monitor the vehicles around his, particularly those in front or to the side of him given the traffic density.
When he saw the Getz he failed to properly assess the fact it was a much slower moving vehicle which then stopped. He failed to appreciate that he needed to take immediate … and urgent action and, significantly, the accused failed to turn his mind to the fact that there was no guarantee that traffic can travel absolutely unimpeded on a freeway and that there will never be an occasion where a driver can assume that they will not have to brake suddenly in an emergency, or stop completely, depending on the type of road hazard or obstruction.
The prosecution case is not simply that the accused failed to pay sufficient attention to the one vehicle immediately in front of his. It was his failure to pay sufficient care and attention to all the circumstances I have just mentioned that caused the accused to put himself in a position where a crash was inevitable given his manner of driving. In summary, your Honour, you will hear evidence that in the circumstances the accused failed to pay adequate care and attention to routine driving matters to such a degree that his manner fell well short of that expected of a normal prudent driver to such an extent that it could only be described as being careless driving. (emphasis added)
It can be seen from this that the allegation of driving without due care and attention was comprised of a number of components:
1.That the appellant was driving too close to the car immediately in front of him;
2.That he was driving with his cruise control engaged whilst failing to adequately monitor the cars around him;
3.That when he saw the stationary Getz he failed to appreciate the need to take urgent action and did not take such action; and
4.That he drove without regard to the possibility that he might encounter a road hazard or obstruction that would require sudden braking or a complete stop.
These components were inter-related. In particular, whether or not the appellant was travelling too close to the car in front was relevant to whether it was safe to drive with the cruise control engaged and whether he had an opportunity to take urgent action to avoid a collision.
In these circumstances it is clear that the allegation that the appellant was travelling too close to the car in front was an important, if not essential, part of the prosecution case. Whilst the prosecutor did not specify in opening what he meant by 'too close', the implication was that he meant closer than was appropriate to avoid a collision with the car in front if it braked suddenly.
It was necessary for the learned magistrate to consider how far the appellant was driving from the car in front of him and whether that distance was consistent with the appellant driving with due care and attention. This required taking into account evidence as to speed, the surrounding circumstances and normal braking distances for cars in these circumstances. Evidence as to those matters was relevant to a fact in issue at the trial.
The evidence
Debra Gavlak
Ms Gavlak was in a car that was towing a boat heading north on the Mitchell Freeway. The occupants of the car heard a noise and pulled over into the left side emergency lane to see if there was a problem with the trailer. Whilst she was standing at the back of the boat trailer Ms Gavlak saw the Getz slow down and stop in the far right-hand lane. She saw that there was an indicator light on the Getz and that the brake lights were also on. The elderly driver of the Getz looked somewhat distressed.[2]
[2] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 4 February 2019, 35 ‑ 36.
Ms Gavlak saw a light-coloured car dodge or swerve to the left of the Getz and keep driving. She was concerned about the driver of the Getz because the traffic was flowing 'quite steadily' in all of the lanes.[3] In cross-examination she agreed that the events that followed happened very quickly. She saw a car hit the Getz from behind. She said that the Getz had been stopped for about 2 ‑ 3 seconds before that collision took place.[4]
[3] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 4 February 2019, 36.
[4] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 4 February 2019, 37, 42.
Ms Gavlak estimated that the car that collided with the Getz was about 2 ‑ 3 car lengths behind the light coloured car in front of it before that car changed lanes. In cross-examination she agreed that the estimate of 2 ‑ 3 car lengths was the best answer that she could give and that her focus was on the lady in the Getz.[5]
Brett Baker
[5] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 4 February 2019, 37, 42.
Mr Baker was driving in his Ford Ranger in the right lane when he noticed the car with the boat and trailer in the left emergency lane. He also saw that there was a black car (the Getz) that appeared to have either stopped or was slowing down in the lane in front of him. There were no lights on the car and as he got closer he realised that the car was stopped so he moved to the middle lane and drove around it.[6]
[6] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 4 February 2019, 49.
Mr Baker saw the Getz when it was a 'good 50 metres' in front of him. At that time he started to realise that it was either moving very slowly or had stopped. As he went around the car there was another car that was driving immediately behind him that did the same thing. After driving around the Getz he returned to the right lane. After he had driven about 100 m he saw in his rear view mirror that a third car had hit the Getz. He estimated that the car immediately behind him was probably 10 m from him when he changed lanes and was a light brownish colour.[7]
Jayde Harvey
[7] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 4 February 2019, 49 ‑ 50.
Ms Harvey was driving in the middle lane heading north on the freeway when she saw the car with the boat pulling into the emergency lane. After passing the boat she then saw the black Getz drift into the far right-hand lane before being hit by another car.[8]
Caitlyn Sanders
[8] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 4 February 2019, 56.
Ms Sanders was in the back seat of a car driving north on the freeway when she saw an elderly lady in a dark hatchback who looked very stressed and confused. She could see that the lady was slowing down and appeared to be moving into the middle lane. As she passed the lady she looked back over her shoulder and saw another car collide with the hatchback.[9]
Soo Jeong Hon
[9] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 4 February 2019, 60 ‑ 61.
Ms Hon was a passenger in the car that had been towing the boat. She got out of the car with Ms Gavlak and heard Ms Gavlak ask why a car had stopped in the middle of the freeway. She saw a car swerve around a black Getz. The car that did the swerving was either a gold or beige colour. She did not see any other car go around the Getz. She did see a car collide into the back of the Getz, which was stationary at the time.[10]
Robert Wright
[10] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 5 February 2019, 109 ‑ 110.
Senior Constable Wright attended the scene of the crash and took some photographs. The photographs were tendered in evidence.
Paul Woolsey
Senior Constable Woolsey is attached to the major crash investigations group. He carried out an examination of the scene of the collision and prepared a number of crash reports. He noted that in the area of the collision the freeway is relatively flat and straight and is so for some hundreds of metres.[11]
[11] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 4 February 2019, 75.
Senior Constable Woolsey gave evidence about some calculations that he had made utilising data that had been retrieved from the airbag module in the appellant's car. This data confirmed that:
1.The appellant's car had been travelling at approximately 101 km per hour immediately before it collided with the Getz.
2.The Getz was stationary or almost stationary at the time of the collision.
3.The appellant's car had been on cruise control at 100 km per hour at least for a period of 4.75 seconds prior to the collision (it was not in dispute that the speed limit at this point of the freeway was 100 km per hour).
4.Between 0.25 seconds and 0.75 seconds from the collision the accelerator in the appellant's car was pressed and there was a steering movement to the right, from which it can be inferred that the appellant made some attempt to avoid the collision within that time.[12]
[12] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 4 February 2019, 82 ‑ 86.
Senior Constable Woolsey said in re-examination that a driver's typical reaction time was probably 1.5 ‑ 2 seconds depending on the circumstances.[13]
David Magorian
[13] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 5 February 2019, 105.
Sergeant Magorian is in the reconstruction unit of the major crash investigations section of the WA Police. He obtained the data from the airbag control module in the appellant's car and gave evidence that:
1.The appellant's car was travelling at 101 km per hour with the cruise control engaged up to a point somewhere between 0.25 of a second before the collision and the collision, when the accelerator pedal was pressed.
2.For the whole of the 4.75 second period recorded by the control module the brake pedal was not applied.
3.Somewhere between 0.75 and 0.25 seconds before impact there was some steering input.
4.The appellant's car would have been about 21 m from the Getz at about 0.75 seconds from impact if it was travelling at 100 km per hour.
5.It might take a driver about 2.2 seconds to perceive and react to a stationary car. A driver confronted with a sudden stationary vehicle might have a quicker reaction time.
6.It is not possible to apply a perception/reaction time of 2.2 seconds to this particular incident because there are many differences between individuals and Sergeant Magorian was not aware of any research having been done in relation to similar incidents.[14]
Thomas Massey
[14] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 5 February 2019, 125 ‑ 127, 131, 133 ‑ 134.
Constable Massey performed a breath test on the appellant but no evidence of the reading (if any) was adduced.
Peter Wilshire
Mr Wilshire is a vehicle examiner. His evidence comprised his report which became exhibit 10. It is not relevant to the issues for determination on this appeal.
Sonia Wilson
Detective Senior Constable Wilson is a detective with major crash investigations who confirmed that the appellant's blood test showed a negative reading for illicit substances and alcohol.[15]
Robert Davey
[15] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 5 February 2019, 142.
The appellant elected not to give evidence at the trial, however the defence adduced expert evidence from a crash consultant, Mr Robert Davey. The prosecutor conceded that Mr Davey was well qualified to give evidence of an expert nature in accordance with the contents of his report.
Mr Davey's report was tendered (exhibit 12) and contained the following relevant opinions:
9.4Witness evidence suggests that the Toyota was following another unknown vehicle before the crash and that this vehicle 'swerved' into the centre lane to avoid the Hyundai that had been stationary for approximately two seconds. Given the Mitchell Freeway is straight at this location, it is unlikely the accused could have seen the Hyundai before the unknown vehicle moved to the left.
9.5Such a situation is unusual and not one normally accounted for by drivers when travelling on a multi-lane road such as the Mitchell Freeway. Advice offered by the Road Safety Commission of Western Australia suggests a safe gap between moving vehicles as two seconds. However, it does not allow for a circumstance where a stationary object suddenly appears in front of a vehicle without warning, which would require at least 5.5 seconds or 100 metres to react and stop from 100 km/h.
'A safe following distance depends on your speed, the weather, road conditions and the type of vehicle you are driving. In good conditions, you should drive at least two seconds behind the vehicle in front of you'
9.6In our opinion, given all the circumstances including speed, the stationary Hyundai and the movement of the unknown vehicle, this crash was unavoidable. It would not be practical for drivers to allow a five-second gap (over 100 metres) between vehicles to allow for the sudden and unexpected appearance of a stationary object or vehicle. The two-second rule has been adopted in at least two countries (Australia and the UK) to our knowledge and allows for heavy braking by the vehicle being followed.
9.7Perhaps it could be argued that the accused should have seen the stationary Hyundai before the unknown vehicle swerved to the left. While under certain circumstances this may be possible, especially around a bend, on this occasion however the road was straight, and it is likely that tinted windows, headrests or occupants may have obscured the view of the Hyundai.
(emphasis in original)
Mr Davey said that he agreed with the calculations that had been made by Senior Constable Woolsey. He said that there are two factors that must be considered in respect of the stopping distance of a car. Those factors are the driver's perception reaction time and the actual braking distance. In relation to the perception reaction time Mr Davey spoke about the need for a driver to perceive something that requires a response and then for that response to occur, for example physically moving a limb. It is not possible to ascribe a definite perception response time to an individual person.[16]
[16] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 6 February 2019, 153, 156 ‑ 158.
In relation to the issue of braking distance, Mr Davey gave evidence that, assuming hard braking, it would take 49 m to bring the appellant's car to a complete stop if it had been travelling at 100 km per hour at the time of braking and this would take approximately 3.5 seconds. In his report Mr Davey calculated that if a perception response time of 2 seconds was assumed then the total time that would be required to react and stop the appellant's car travelling at 100 km per hour was about 5.5 seconds (which is the equivalent of approximately 100 m).[17]
[17] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 6 February 2019, 170 ‑ 171; exhibit 12 [9.5].
In Mr Davey's report he referred to guidance offered by the Road Safety Commission of Western Australia about the safe distance that should be left between moving vehicles. The recommendation was that a safe distance was two seconds of travelling time (the so called two second rule). Mr Davey said that the utility of this recommendation was that it provided for the distance to increase as the speed of the vehicle increased. Applying this figure to the facts of this case, Mr Davey calculated that the collision would have been unavoidable. This was because, in his view, there would not have been sufficient time for the appellant to perceive the Getz and to then react before colliding with it.[18]
[18] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 6 February 2019, 183, 186; exhibit 12 [9.5] ‑ [9.6].
In cross-examination Mr Davey's evidence with regard to the following distance was challenged:[19]
[19] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 6 February 2019, 182 ‑ 185.
Now, Mr Davey, you would agree that in regard to your analysis of the two-second rule, that relates to - and I think Mr Magorian touched on this so please correct me if I use the wrong terminology because I'm not particularly familiar with it - but the two-second rule applies to and is shown in the colour picture there at 3.2.1, shows a vehicle purportedly following another moving vehicle? --- Correct.
And, of course, the assumption is - please correct me if I'm wrong - is if you are two seconds behind the vehicle in front and it brakes heavily in an emergency situation, but you then have two seconds of perception reaction time in which to brake? --- Correct.
So when you finally brake, in that diagram, you would be braking effectively in exactly the same position the red car would be braking in the same position as the green car? --- If you had the two-second reaction time, yes.
Yes. And assuming that the cars have got fairly much the same ability in terms of braking, they wouldn't collide? --- If we're talking about exactly the same - did you say they wouldn't collide or they would collide?
They wouldn't collide? --- They wouldn't collide.
That's right? --- That's correct. Yes.
That is - - -? --- If they had exactly the same braking efficiency.
And that is the purpose of the two-second rule, isn't it? --- Absolutely. And the beauty of it is, is that it doesn't matter what speed you're travelling at because it's just as applicable at 100 k as it is at 300 k or 50 k - Okay? --- - - - because it automatically adjusts based on your speed.
But in terms of the situation that we have in this case, Mr - sorry, the accused is - although he's following a vehicle, he is also presented then with - I will call it, well, again it's an immovable object for which he has to take immediate evasive action? --- Yes, and that was the thrust of that.
So what I'm saying to you is the two-second rule has no application in terms of how far Mr - sorry, I the accused should have been travelling behind the vehicle in front in relation to a stationary hazard ahead? --- At no point does this rule allow for a stationary object in the road. It is simply if you are following another moving vehicle, that is a safe distance or safe time, should I say, to follow. However, it does not allow for the sudden appearance of a stationary object or vehicle in the road.
A little later the following exchange occurred:[20]
[20] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 6 February 2019, 185 ‑ 187.
So in terms of the Getz that the accused, to avoid that by either steering around it or braking and stopping, he would have to allow a lot further, wouldn't he? --- To allow for a stationary object?
Yes? --- Yes, absolutely. Yes. He would be up towards five and a half seconds. But the rule is - there is a rule, a guide if you like, to drivers in Western Australia to allow two seconds.
But that - I keep - this is the point I'm - - -? --- I probably would have a 5.5 seconds, not a two-second rule.
Well, that's partly the point of this - the question I'm asking, Mr Davey, is that the two-second rule applies to following the vehicle in front. It doesn't apply at all to the amount of time you need to allow if a stationary object appears in front of you? --- But if the accused was following a moving vehicle, the two-second rule applies.
Equally does the fact that he should allow a greater distance in case a stationary object appears in front of him? --- It doesn't say that in the two-second rule.
I know.
HER HONOUR: This isn't a question/answer back and forward. Mr Davey has already said the two-second rule doesn't apply here. He has given that evidence.
CROOK, MR: Yes, thank you, ma'am.
HER HONOUR: Yes.
CROOK, MR: I will move on. I was wondering if you could clarify for me your opinion at 9.6? --- Certainly.
It says, and I have to put an interpretation of words here to ask you to explain them:
In our opinion, giving all the circumstances including speed, the stationary Hyundai and the movement of the unknown vehicle, this crash was unavoidable.
What do you mean, why was it unavoidable? --- In the circumstances that I've outlined, so if you are following another vehicle at 100 kilometres per hour and the vehicle in front suddenly moves to the left, presenting a stationary vehicle or object in the road, you will not avoid it, because the two seconds between you and the vehicle you're following will be used up during the perception reaction time.
I appreciate that. But where in the evidence is there any evidence the accused was following two seconds behind the vehicle in front? --- This was applying the two-second rule.
Why? --- Because that's what drivers are advised to do in Western Australia.
I know what drivers are advised to do. But what was the accused doing? --- I don't know.
HER HONOUR: Well -
CROOK, MR: Why did you - sorry, ma'am.
HER HONOUR: No. You said that the two-second rule doesn't apply. The question needs to be put in a different way. What you're putting to this witness is that if there is no evidence about him being two seconds behind, isn't that right?
CROOK, MR: Yes.
HER HONOUR: Okay. Can you formulate the question in an appropriate way?
CROOK, MR: Well, if there is no rule - so the two-second rule applies in this circumstance, and there is no evidence that the accused was actually travelling two seconds behind the unknown vehicle, why did you apply it? --- Because I was referring to the two-second rule. However, if the accused - if the court finds the accused was five seconds behind, then the two-second rule obviously doesn't apply.
But why did - - -? --- There will be a longer time to perceive and react and a longer time to break.
I understand that, but why did you apply the two-second rule at all when you didn't know it had any application to this other than a website suggesting that's the appropriate distance to drive? --- This is a rule that I've outlined in my report and I'm saying if the accused was complying with --- that rule, then he would not be able to stop in time.
HER HONOUR: It's a speculative statement - if - - -? --- If.
- - - he was applying? --- It's a what-if scenario.
The magistrate's reasons
In her oral reasons for decision the magistrate correctly identified the essential issue as whether the appellant was driving without due care and attention. She summarised the prosecution's case as follows:[21]
The prosecution allege that by failing to pay proper attention to the traffic around him, that Mr Van Vugt's driving fell below that expected of a prudent driver. In particular, that he was too close in proximity to the car in front of his, that by utilising cruise control he failed to monitor the vehicles around him, that he failed to assess the speed and movement of the Getz, that he failed to appreciate he needed to take immediate action, that he failed to turn his mind to the fact that there is no guarantee that the travel can be absolutely unimpeded on a freeway and that there may be hazards or obstructions requiring immediate action.
[21] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 7 February 2019, 220.
In referring to Mr Davey's evidence her Honour said:[22]
In calculating overall stopping distance, Mr Davey says that both the perception response time, which he denotes as PRT, and braking distance must be considered. PRT is not a scientific calculation, he says. It is the individual and dependent on circumstances, and can only be estimated by looking at prior research. He agreed that what was referred to, or is referred to, as a two-second rule had no application in this circumstance.
Now, while Sergeant Magorian didn't refer to it as the two-second rule, he was effectively describing the two-second rule. The rule, which both experts were describing as the two-second rule, is not a two-second rule in law, and I'm not going not explore that further, but it simply is not a legal aspect of the Road Traffic Act or the Road Traffic Regulations in this State. It is a guideline and something that they use in order to investigate traffic incidents.
Mr Davies [sic] further explained that it had no application in this circumstance because it relies on what is called the lead vehicle scenario, and estimates in that scenario a stopping of two to 2.5 seconds. He said it is possible, and he estimated a braking distance of 49 metres by harsh braking. Because he agreed the two-second rule didn't apply, it follows that f he estimates of 5.5 seconds and 100 metres being required in order to stop is speculative and describes the different scenario. Although I note on his calculations, at negative 4.75 seconds the vehicle's distance was 139 metres.
In relation to the conclusions in his report, which are at page 11, paragraph 9.8 was struck from deliberations by concession as a non‑expert opinion, and I direct myself accordingly in relation to that. Paragraph 9.5 and 9.6 were conceded not to be relevant on the evidence, or the scenario that is immediately before the court for my consideration. Paragraph 9.7 was opinion-based on the information or evidence not before the court and therefore speculative, and the second sentence of 9.4, in my view, is to be treated with caution for the same reasons. And that effectively was all of the evidence that I've heard in relation to this matter. (emphasis added)
[22] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 7 February 2019, 225 ‑ 226.
Her Honour then went on to set out her factual findings, relevant legal principles and the inferences that could be drawn from the facts. She referred to the fact that the two cars ahead of the appellant had been able to take evasive action and that the movement of those cars should have 'alerted him as a prudent driver'. She said that a person driving with due care and attention must drive assuming that a sudden stop may be necessary. She concluded that a lack of care was the only reasonable inference open on the evidence and that 'being too close in front of the car at a speed and not allowing a sudden stop or evasive action to be taken' [sic] was not the behaviour of a prudent driver.[23]
[23] ts, Magistrates Court of Western Australia, Western Australia Police v Van Vugt, 7 February 2019, 230 ‑ 231.
It is apparent from the reasons that, whilst the following distance was not the only reason the magistrate found that the appellant failed to drive with due care and attention, it was an important factor in coming to that conclusion.
Relevant law relating to careless driving
There was no dispute as to the relevant law relating to the offence of careless driving.
In order to find a person guilty of careless driving it is necessary to be satisfied beyond reasonable doubt that at the time of the incident the person was 'driving the motor vehicle without due care and attention': s 59BA(1) of the Road Traffic Act 1974 (WA).
The test to be applied is whether the driver is using the 'degree of care and attention which a reasonable and prudent driver would exercise in the circumstances'.[24] The standard is objective.[25] It requires appropriate 'watchfulness, caution and vigilance'.[26] It also requires that the driver take into account that other drivers may not drive in an ideal way at all times.[27] Whilst a driver is obliged to take into account 'anything that is reasonably probable', he or she is not obliged to act 'on the basis of the occurrence of unlikely possibilities'.[28]
[24] Geneff v Townsend [1970] WAR 20, 21; Illich v Garvey [2001] WASCA 236 [36] and Lumley v The Police [2007] WASC 189 [18].
[25] Lumley v The Police [2007] WASC 189 [18].
[26] Lait v Magden (1992) 16 MVR 72, 79.
[27] Lumley v The Police [2007] WASC 189 [23].
[28] Geneff v Townsend [1970] WAR 20, 22.
Grounds of appeal
The grounds of appeal are as follows:
1.The learned Magistrate misapprehended the unchallenged evidence of Robert Davey, and thereby erred in fact in finding that the appellant had been driving too close to the car in front of him, had not allowed for a sudden stop or evasive action, and had not assessed the surrounding circumstances.
Particulars
(a)Mr Davey gave unchallenged expert evidence that:
i.on the assumption that a 'perception/response time' of 2 seconds was reasonable, it would have required 'at least 5.5 seconds or 100 metres to react and stop from 100 km/h; and
ii.if the appellant had been driving behind the car that was immediately in front of him at a distance that was consistent with advice offered by the Road Safety Commission of Western Australia about following distances (the '2 second rule'), the collision was therefore 'unavoidable'.
(b)The learned Magistrate misapprehended Mr Davey's evidence by erroneously:
i.concluding that he had agreed in his evidence that the '2 second rule' had no application in the circumstances;
ii.conflating the '2 second rule' with a perception/response time of 2 seconds;
iii.finding that his estimates of 5.5 seconds and 100 metres being required in order to stop were 'speculative and describes a different scenario'; and
iv.finding that paragraphs 9.5 and 9.6 of Mr Davey's report (Exhibit 12) had been 'conceded not to be relevant on the evidence, or the scenario that [was] immediately before the court for ... consideration'.
2.The learned Magistrate misapprehended the unchallenged evidence of Mr Davey in the manner referred to in ground 1, which misapprehension occasioned a miscarriage of justice.
3.The verdict of guilty was unreasonable or cannot be supported having regard to the evidence, which occasioned a miscarriage of justice.
Particulars
It was not open on all of the evidence, including the unchallenged evidence of Mr Davey, to conclude that the only reasonable inference open was that the appellant had been driving without due care and attention immediately before, or at the time of, the collision.
The appellant requires leave to appeal on each of the grounds. The court can only grant leave to appeal if it is satisfied that a ground has a reasonable prospect of succeeding.
There is also an issue in regards to extension for time. It is arguable that the appellant failed to file all the relevant papers within the required time. However, the delay was small and the respondent accepts that if an extension is required it should be granted.
Grounds 1 and 2 - the merits
Grounds 1 and 2 are based on a contention that the magistrate misapprehended Mr Davey's evidence about the time it would have taken for the appellant's car to have stopped when travelling at 100 km per hour on being confronted with a stationary car in the right-hand lane on the freeway. It is apparent from the magistrate's reasons that she took the view that the evidence in regard to a two second perception response time was irrelevant because it applies only to circumstances where both vehicles are moving. Her Honour took the view that because the Getz was stationary the two second rule, and what Mr Davey said about it, had no application to this case.
It is true that a two second response time is not an appropriate measure where a driver is presented with a sudden stationary object, but that is not how Mr Davey sought to use it. It is clear from Mr Davey's evidence that he was using it in assessing whether the circumstances of the accident were necessarily indicative that the appellant had been travelling too close to the car in front of him. That was a relevant matter since it formed an important part of the prosecution case that the appellant had engaged in careless driving.
The respondent has sought to argue that the magistrate was not dismissing Mr Davey's evidence but merely referring to the fact that the two second rule had no application in respect of stopping before colliding with a stationary object. That is, that her Honour was not dismissing the evidence from consideration entirely. I cannot accept this submission. If the magistrate appreciated that Mr Davey's evidence was relevant in the way I have earlier described, it would be expected that at some later point in her reasons she would have referred to that evidence. It is notable that after the passage referred to above there is no other reference to Mr Davey's evidence. The only reasonable conclusion that can be drawn is that the magistrate considered that the evidence was of no relevance. This is also confirmed by the magistrate's comments during cross-examination of Mr Davey.
In my view her Honour did misapprehend the evidence of Mr Davey. Mr Davey's evidence was to the effect that the two second rule provided a good guide for the safe stopping distance of moving vehicles. In his view it was likely that the appellant's view of the stationary Getz was blocked because the freeway at that point was straight and there were two cars ahead of him. In these circumstances the collision was consistent with the appellant driving at a safe distance at 100 km per hour behind the car immediately in front of him. The fact that two cars between him and the Getz were able to take evasive action does not necessarily mean that the appellant could have done so as, Mr Davey said, he might only have seen the Getz when those cars moved and some of the perception response time would therefore have been taken up, giving the appellant less time to respond than those in front. I note that this might also be consistent with the description by some of the witnesses in regards to the second brown car swerving or dodging around the Getz.
The magistrate was correct to say that the two second rule is not a rule of law, it is merely a guideline or recommendation. However, that does not mean that evidence based on the application of that guideline was irrelevant. Mr Davey explained why the guideline was useful having regard to known driver response and braking times. His expertise in this regard was not disputed. Of course, a travelling distance of two seconds may not always be safe, it may depend on the particular circumstances. There may have been circumstances here that required a prudent driver to allow a greater distance, but that does not mean that Mr Davey's evidence was irrelevant.
The magistrate was not correct in stating that Mr Davey had agreed that the two second rule had no application in the circumstances of this case. Nor was it correct to describe his opinions as speculative. It is not speculation for an expert to consider whether the known objective facts are consistent with more than one possible scenario. In particular, it was not speculation for Mr Davey to express the view that the collision could have occurred even if the appellant was travelling at a safe distance (or at least a two second distance) behind the car immediately ahead of him.
This evidence of Mr Davey was material to an assessment of whether the appellant was driving carelessly as alleged. It is evidence that had the potential to affect the outcome. The magistrate was not obliged to accept the evidence but she could not exclude it from consideration as being irrelevant.
The structure of the magistrate's reasons do not permit a conclusion that the same result would have been reached even if the error had not been made. In these circumstances the magistrate's misapprehension of Mr Davey's evidence resulted in a miscarriage of justice. Leave to appeal in respect of grounds 1 and 2 must be granted, the appeal allowed and the convictions set aside.
Ground 3 - the merits
By this ground the appellant asserts that the verdicts of guilty that were entered by the magistrate were unreasonable or cannot be supported having regard to the evidence. Unlike s 30(3) of the Criminal Appeals Act 2004 (WA), s 8 does not expressly provide for an appeal against conviction on the basis of a verdict of guilty by a magistrate that was unreasonable or cannot be supported having regard to the evidence. Such a claim must be encompassed within a ground alleging a miscarriage of justice, as here. However, the principles relevant to an appeal relying on such a ground in indictable matters are applicable by analogy to an appeal against a verdict of guilty entered by a magistrate.[29] Those principles have been summarised by the Court of Appeal in Wells v The State of Western Australia [2017] WASCA 27 [13].
[29] See Owaiti-Zadeh v Gill [2012] WASC 465 [64] ‑ [69]. See also The State of Western Australia v Olive [2011] WASCA 25 [39] ‑ [46].
In this case the magistrate correctly recognised that the prosecution case relied on the drawing of an inference about the manner of the appellant's driving immediately before his car collided with the Getz. The prosecution case was not solely based on the allegation that the appellant was driving too close to the car immediately in front of him, though that did form an important part of that case.
The magistrate concluded that the only reasonable inference was that the appellant drove without due care and attention because he failed to take evasive action and was too close to the car in front of him while driving at speed, thereby not allowing for a sudden stop. It is difficult to identify with precision the primary facts from which her Honour drew the inference of guilt. However, the real question is whether there was evidence capable of supporting a conclusion that the appellant was driving without due care and attention.
There was evidence from some of the witnesses, in particular Ms Gavlak, that the appellant's vehicle was some 2 ‑ 3 car lengths behind the car in front of him. This would be significantly less than the recommended distance, since the two second rule would require cars travelling at 100 km per hour to be in excess of 50 m apart. Whilst Ms Gavlak's evidence in this regard was an approximation and made in circumstances which were not ideal for assessing such matters, that evidence is capable of supporting a conclusion that the appellant was travelling too close to the car in front of him.
That evidence does not stand alone; there was also the evidence regarding the speed at which the appellant was travelling, that the cruise control was not disengaged and that evasive action was taken by the appellant only moments before the collision occurred. Whilst some of these factors may not necessarily be inconsistent with an inference that the appellant was driving with due care and attention, they are also capable of supporting an alternative conclusion. Furthermore there was evidence regarding surrounding circumstances, such as the stopped car and boat in the emergency lane and the evasive action taken by the cars in front, which could be relied on by the prosecution as alerting a prudent driver to the need to slow down, disengage the cruise control and anticipate a hazard ahead. This evidence could support a conclusion that the circumstances called for a greater following distance than the two second rule would recommend.
As to what conclusion is ultimately drawn it is necessary for there to be an assessment of the credibility and reliability of the witnesses concerned. That, of course, includes Mr Davey.
A ground of appeal of this nature can only succeed if the appeal court is satisfied that it was not open on the evidence for the magistrate to find the appellant guilty. If such a ground succeeds then a judgment of acquittal must be substituted. I am not satisfied that the evidence is incapable of supporting a guilty verdict; accordingly the ground cannot succeed.
Conclusion
The Orders will be as follows:
1.An extension of time to appeal is granted.
2.Leave to appeal on grounds 1 and 2 is granted.
3.Leave to appeal on ground 3 is refused.
4.The appeal is allowed.
5.The convictions are set aside.
6.The matter is remitted to the Magistrates Court for a retrial before a different magistrate.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AL
Associate to the Honourable Justice Hall16 MARCH 2020
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