Wynwood v Williams
[2000] TASSC 28
•7 April 2000
[2000] TASSC 28
CITATION: Wynwood v Williams[2000] TASSC 28
PARTIES: WYNWOOD, Shane Geoffrey
v
WILLIAMS, Shane
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 10/1999
DELIVERED ON: 7 April 2000
DELIVERED AT: Burnie
HEARING DATES: 28 March 2000
JUDGMENT OF: Evans J
CATCHWORDS:
Magistrates - Appeals from and control over Magistrates - Tasmania - Motion to review - When remedy available - Respondent acquitted of dangerous driving - Magistrate failed to make objective assessment of the danger of the Respondent's driving.
Traffic Act 1925 (Tas), s32(1).
Criminal Law Consolidation Act 1935 (SA), s.35.
R v Coventry (1938) 59 CLR 633; R v Turner 27/1974; R v Cripps [1958] Tas SR 26; R v Smith [1969] Tas SR 159; followed.
Aust Dig Magistrates [270]
REPRESENTATION:
Counsel:
Appellant: M F Lillas
Respondent: G A Richardson
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: G A Richardson
Judgment Number: [2000] TASSC 28
Number of Paragraphs: 16
Serial No 28/2000
File No LCA 10/1999
SHANE GEOFFREY WYNWOOD
v
SHANE ANTHONY WILLIAMS
REASONS FOR JUDGMENT Evans J
7 April 2000
The applicant appeals against the respondent's acquittal on the following charge:
"CHARGE: Dangerous driving
BREACH OF: Section 32(1) Traffic Act, 1925.
PARTICULARS: You are charged with on the 14th March 1997 driving a motor vehicle on Thomas and Tarleton Streets, public streets at Devonport in Tasmania, at a speed and in a manner which was dangerous to the public, having regard to all the circumstances of the case, including the nature, condition, and use of the public street and to the amount of traffic that actually was at the time or that might reasonably be expected to be on those street.
PARTICULARS OF RECKLESS / DANGEROUS DRIVING
1 That you accelerated your vehicle in an easterly direction on Thomas Street to an estimated speed of 90 kmh in a built up area.
2 That you failed to maintain proper control of your vehicle namely by braking heavily as to lose traction with the road.
3 That you failed to indicate your intention to turn south into Tarleton Street.
4 That you accelerated your vehicle in a southerly direction on Tarleton Street to 135 kmh in a built up area.
5 That you failed to indicate your intention to overtake a vehicle travelling south on Tarleton Street.
6 That you proceeded through a red traffic control signal in a southerly direction along Tarleton Street at the intersection of Tarleton Street and Torquay Road.
7 That you travelled through that intersection at such a speed as to be incapable of avoiding a collision namely 85 kmh.
8 That you proceeded through a red traffic control signal in a sourtherly direction along Tarleton Street at the intersection of Tarleton Street and the Bass Highway off ramp.
9 That you travelled through that intersection at such a speed as to be incapable of avoiding a collision, namely 120 kmh."
For relevant purposes the Traffic Act 1925, s32(1) provides:
"32 (1) A person who drives a motor vehicle on a public street … at a speed or in a manner that is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition, and use of the public street and the amount of traffic that actually is at the time or that might reasonably be expected to be on the public street, is guilty of an offence against this Act …"
The charge alleges that the respondent drove at a speed and in a manner dangerous to the public. In R v Turner 27/1974, Crawford J in substance held that on such a charge, an allegation as to the speed of an accused's driving is subsumed by the allegation as to the manner of his driving. In result, there is only one matter of complaint, the manner of the accused's driving. In considering the manner of driving, the factors to be taken into account, of course, include speed.
The assessment of the manner of an accused's driving is objective. In R v Coventry (1938) 59 CLR 633 Latham CJ, Rich, Dixon and McTiernan JJ said the following in relation to the state of mind involved in the offence created by the Criminal Law Consolidation Act 1935 (SA), s14, referable to driving "at a speed, or in a manner, which is dangerous to the public":
"The driver may have honestly believed that he was driving very carefully, and yet may be guilty of driving in a manner which is dangerous to the public. The jury is to determine, not whether the accused was in fact, as a matter of psychology, indifferent or not to the public safety, but whether he has driven in a manner which was dangerous to the public. The standard is an objective standard, 'impersonal and universal, fixed in relation to the safety of other users of the highway' (per Hewart LCJ in McCrone v Riding [1938] 1 All ER 157; and see Kingman v Seager [1938] 1 KB 397). The standard is impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles.
No doubt the language of the section does not exclude a defence of mistake of fact on reasonable grounds or of involuntariness (for example, interference by another person with the driving of the car), and perhaps there may be other exceptional excuses, based on special facts, to which a state of mind may not be immaterial. But, speaking generally, the expression 'driving at a speed, or in a manner, which is dangerous to the public' describes the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence. It is not desirable to attempt to make an exhaustive catalogue of possible defences, and what we have said is sufficient to deal with the present case."
In R v Cripps [1958] Tas SR 26, Burbury CJ said of the offence of driving in a manner dangerous to the public, at 27:
"No specific intent on the part of the driver need be proved. But that is not to say that no fault on the part of the driver need be proved."
And at 28:
"In my view, the conduct of the driver in the management and control of the car must be shown in some way to be at fault. If he deliberately drove the car in a manner dangerous to the public, that, of course, would be sufficient. If he adverted to the risk, that is to say, knew that he was driving dangerously but showed indifference to the consequences, that of course would be sufficient. But neither of those elements is essential. If his conduct in driving ¾ and I emphasise it is his conduct ¾ it is his manner of driving ¾ that is careless, that in my view is sufficient."
In determining whether the manner of driving is dangerous to the public, regard is to be had to both actual and potential road users. In R v Smith [1969] Tas SR 159, Burbury CJ said at 162 - 163:
"The legislative purpose in creating the offence of 'dangerous driving' was no doubt to punish drivers who by their manner of driving endanger the safety of others. The section requires that the speed or manner of driving must be shown to be 'dangerous to the public' which is to be determined 'having regard to all the circumstances of the case, including the nature, condition, and use of the public street and the amount of traffic that actually is at the time or that might reasonably be expected to be on the public street'. These prescribed circumstances are the criteria to be applied to determine whether the defendant's driving should be regarded as dangerous to the public, but they are of some assistance in determining the connotation of the expression 'the public'. It is clear from the words of the section itself that it need not be established that any particular person was in fact endangered by the speed or manner of driving …
In deciding whether the speed or manner of driving is dangerous to the public, regard is to be had not only to the amount of traffic that actually is on the public street at the time, but also to the amount of traffic 'that might reasonably be expected to be on the public street'. The expression 'the public' therefore at least includes both actual and potential other users of the road on which the defendant is driving. The 'public' endangered by the speed or manner of his driving and therefore protected by the statute is therefore not to be regarded as a number of particular individuals endangered but as an innominate class. It is the section of the community as an aggregate shown to be actually or potentially within the ambit of danger created by the speed or manner of driving."
The driving which is the subject of the charge may present a danger to the public notwithstanding that no actual injury is caused if the driving constitutes a real or potential danger. In R v Coventry (supra), Starke J said at 639:
"The offence is established if it be proved that the acts of the driver create a danger, real or potential, to the public. Advertence to the danger on the part of the driver is not essential; all that is essential is proof that the acts of the driver constitute danger, real or potential, to the public."
In McBride v R [1966 - 1967] 40 ALJR 57, Barwick CJ said at 59:
"A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section."
Commonly, the determination of a charge of dangerous driving requires the consideration of a number of incidents which occurred during the course of a driving episode, and gauging the real or potential danger to the public involved in each incident. That, of course, is not the end of the process, as the ultimate question for the court is whether the course of conduct which encompasses the various incidents was dangerous to the public.
To succeed on this appeal, the applicant must show that there has been an error or mistake on the part of the learned magistrate on a matter of fact or law. This is not an appeal by way of rehearing. The question for an appellate court on a notice to review an acquittal is whether, on the basis of the evidence before the magistrate, he or she was entitled to hold that the offence was not proved. It is only if the appellate court is satisfied that on no reasonable view of the evidence could the magistrate have failed to be satisfied beyond reasonable doubt of the accused's guilt that it should allow the motion; Leonard v Newell [1983] Tas R 78 and Richardson v Shipp [1970] Tas SR 105. So as to enable the appellate court to exercise its jurisdiction, the magistrate should consider the whole of the relevant evidence and expose sufficient of his or her reasoning process to enable an appellate court to properly understand the basis on which the decision has been reached; Xiong v McCarthy A45/1994, Underwood J, with whom Wright J agreed. This is pertinent as one of the grounds of the applicant's notice to review is that the learned magistrate erred in failing to adequately state his findings and the reasons for his decision.
The charge relates to the respondent's manner of driving on Friday 14 March 1997 at about 9pm when he drove for a distance of about 2.1 km on public roads in Devonport. At the time it was dark, the roads were dry, the weather was fine and the traffic was moderate. Two police officers travelling in a marked police van observed the respondent driving his motor cycle along Thomas Street, Devonport at a speed they estimated at approximately 90 km/h. The speed limit in Thomas Street and the other roads over which the respondent travelled during the episode was 60 km/h. As to his speed in Thomas Street, the respondent said "I know I was speeding, but I did not know what speed it was". Before turning right from Thomas Street into Tarleton Street, the respondent braked suddenly, causing his bike to fishtail for about 10 metres. He made the turn without indicating his intention to do so. The police officers followed the respondent in an endeavour to intercept him. The blue and red roof lights and the siren of the police van were activated. The respondent accelerated to a speed that the police officers estimated at 135 km/h as he travelled along Tarleton Street. Without indicating, and in the face of oncoming traffic, the respondent overtook a motor vehicle. In doing so he only moved a short distance out of his own lane, if at all. Although the respondent could not recall this particular incident, he described this type of manoeuvre as 'white-lining'. The respondent said that the carriageway in Tarleton Street was almost double width. The traffic control light facing the respondent as he approached the intersection of Tarleton Street with Torquay Road was red. The respondent slowed to a speed which the police officers estimated at approximately 85 km/h and he went through that red light. The respondent said there were some cars around, but the intersection was clear as he proceeded through and he did not hinder anybody. He then accelerated to approximately 120 km/h and went through a red traffic control light at the junction of Tarleton Street with Link Road. As he entered that junction, the respondent passed to the left of a number of stationery vehicles waiting at that red light. The lane the respondent travelled in to pass these vehicles was clear of traffic.
The learned magistrate gave the following reasons for dismissing the charge:
"It's clear that the defendant did ride his motor cycle at speeds in excess of the applicable speed limit and also that he did disobey two red lights on his journey before being intercepted by the police. I find, having considered all the evidence, that I can't be satisfied beyond reasonable doubt as to the precise speeds alleged. I say this given the inconsistencies in the evidence of the two police officers as to the distances between the two vehicles throughout the relatively short chase and what I consider to be the impossibility to precisely estimate speed given the rapid changes in those distances between intersections and the traffic lights. With that qualification I am satisfied that the prosecution has proved the majority of the particulars, however having heard the evidence of the defendant I'm not satisfied that the defendant, as he travelled through the two red lights, did so at such a speed so as to have been incapable of avoiding a collision, so to that extent I don't accept particulars seven and nine in their entirety. With the exception of when the defendant fishtailed I accept his evidence that he had his motor cycle under control at all times. In considering whether this set of circumstances amounts to dangerous driving it's necessary, of course, to consider all the circumstances of the case. I've done so, and indeed I've been doing so all the time I've been sitting here today listening to the evidence. If particular number seven was not present I would have probably dismissed this complaint half an hour or so ago, however it is there and I've now had a closer look at the evidence surrounding that particular. I'm not prepared, on the evidence, to find that any vehicles travelling east and west at that intersection at that time had to brake to avoid a collision. Constable Tamlin's evidence on that point was not convincing, even more so given the fact that he omitted to make reference to it in his original statement. Constable Wade did not refer to that fact either when he gave his evidence in chief. The evidence is that the defendant slowed to a speed which is alleged to be 85 km/h to go through that intersection. I accept that it was around about that figure, but as I said earlier, I can't be satisfied that it was precisely that figure. The defendant said that he could see that there was no danger to anyone else so he went through. The effect of his evidence was not diminished in cross-examination. On the evidence the police did not consider that the manner in which they drove their own vehicle created any danger to the public at any time throughout the pursuit. I've considered all of the evidence. What I have here is to my mind a series of breaches of the traffic regulations, some more serious than others, committed by the defendant in an act of driving over a relatively short distance. In my view these facts could amount to negligent driving, but this is a much more serious charge of dangerous driving and considering that I am not satisfied beyond reasonable doubt that they do amount to dangerous driving and accordingly I dismiss the complaint."
It seems that the learned magistrate considered particular seven to be the most significant allegation, as he said that if it had not been for that particular, he would have dismissed the complaint earlier. In the course of his reasons, he did not address a number of matters raised by the evidence, two of which, I consider to be of considerable significance. The undisputed evidence was that the respondent, without indicating his intention to do so, overtook a vehicle in the face of oncoming traffic. In doing so, the respondent did not stay far from the line in the centre of the road. It is reasonable to assume that the vehicle he was overtaking and the oncoming vehicles were travelling at a speed in the vicinity of the limit, 60 km/h. The respondent's speed was estimated by the police officers to be 135 km/h. Although the respondent's evidence was that he did not know what his speed was, he said "I was going a lot faster than I should". It was put to the respondent that he was travelling at 135 km/h and his response was "I was using the bike as fast as it would go". He was riding a Harley Davidson motor cycle. He did not suggest that it could not travel at 135 km/h. The closing speed between the respondent and the oncoming traffic was conservatively 175 km/h and his closing speed on the vehicle he was overtaking was conservatively 55 km/h. This manoeuvre was undertaken without any indication of the respondent's intention to overtake. Plainly, it was fraught with danger. A most serious accident could have occurred if the vehicle the respondent was overtaking or the oncoming traffic had unexpectedly manoeuvred into the respondent's path. The other significant matter on which the learned magistrate did not comment is the evidence that the respondent passed to the left of a number of stationery vehicles waiting in a line at the red light at the junction of Tarleton Street with Link Road. At the time the respondent was travelling at a speed estimated by the police officers at approximately 120 km/h. It is inconceivable that the drivers of the stationery vehicles would have anticipated a vehicle passing to their left at anything like that speed in the face of a red light. One of those drivers could well have chosen to move his or her vehicle left into the vacant lane. If that had occurred, the respondent's path would have been impeded and a serious accident could have occurred. Again, this manoeuvre was fraught with danger. It was incumbent on the learned magistrate to assess the danger that these incidents involved to the public. He did not do so.
The respondent drove through a red traffic control light at the intersection of Tarleton Street with Torquay Road at about 85 km/h. In discounting the danger involved in this procedure, the learned magistrate referred to the respondent's evidence that he could see that there was no danger to anyone else when he went through the light. I have already detailed the circumstances in which the respondent drove through the red traffic control light at the junction of Tarleton Street with Link Road at a speed estimated at 120 km/h. The learned magistrate said that having regard to the evidence of the respondent, he was not satisfied that as the respondent travelled through the two red lights, he did so at a speed at which he was incapable of avoiding a collision. Whilst this evidence is relevant, it is by no means decisive of the issue of the danger involved in the respondent's driving. That must be determined objectively. The learned magistrate referred to evidence of the police officers that they did not consider that the police van was driven in a manner which was dangerous. That evidence is of some relevance. However, an assessment of the danger presented by the driving of the police van is of little, if any, assistance to an assessment of the danger of the respondent's driving. The respondent failed to indicate his intention to turn or pass and he drove through two red lights. There was no evidence that the police van did likewise. It is also significant that the blue and red roof lights and the siren of the police van were activated.
On behalf of the respondent, it is submitted that this appeal is totally flawed as it is not open to an appellate court to go behind the learned magistrate's acceptance of the respondent's evidence. Reliance was placed on Uranerz (Aust) Pty Ltd v Hale (1980) 54 ALJR 378, at 381, and Mattingley v Tuckwood (1989) 43 Crim R 111 at 121. In the circumstances of this appeal that submission is misconceived. Save for the question of whether vehicles travelling east or west at the intersection of Tarleton Street and Torquay Road had to brake to avoid a collision with the respondent, there was no real conflict between the prosecution evidence and that of the respondent. Having determined that issue in favour of the respondent, it was incumbent on the learned magistrate to make an objective assessment of the dangers which the respondent's driving in the course of the episode, which is the subject of the charge, presented to the public. In making that assessment, it was necessary for the learned magistrate to pay heed to the dangers inherent in what the respondent did. The respondent was travelling on suburban roads. On the two occasions when he drove through a red traffic light he was travelling at a speed which was substantially in excess of the speed limit, on the latter occasion his speed was approximately twice the speed limit. At the time the traffic was moderate and there was evidence of other vehicles in the vicinity of both intersections. What the respondent did was a grave threat to other users of the road and could have resulted in them suffering severe injury. The learned magistrate did not satisfactorily explain why these and the other aspects of the respondent's driving I have referred to, which, in my respectful view were highly dangerous, were not in his view a danger to the public. The learned magistrate paid insufficient regard to the objective danger of the respondent's driving and placed undue reliance on the respondent's evidence to the effect that it was not dangerous.
I am satisfied that the learned magistrate erred in failing to make an objective assessment of the danger of the respondent's driving and failing to adequately state his findings and the reasons for them. The appeal is allowed and the respondent's acquittal is quashed.
2