De Vries v Australian National Railways Commission

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ANSELL -v- CROOK [2009] WASC 82

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction for dangerous driving occasioning bodily harm - Nature and elements of the offence of dangerous driving - Function of appellate court in reviewing trial - Onus and standard of proof - Manner of driving and actual driving behaviour - Visibility towards oncoming traffic partially obscured when entering intersection - Assessment of evidence with regard to credibility of witnesses - Appellant's vehicle situated in path of oncoming vehicle - Whether sufficient care exercised by driver - Turns of own facts - Appeal dismissed

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

De Vries v Australian National Railways Commission (1993) 177 CLR 472

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32

Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572

Kaighin v The Queen (1990) 1 WAR 390

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507

McPherson v Lucas [2008] WASCA 56; (2008) 181 A Crim R 587

Re The State of Western Australia; Ex parte Worswick [2005] WASCA 187

Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193

1 The appellant, Cherie Jessica Ansell, seeks leave to appeal against a conviction for dangerous driving occasioning bodily harm contrary to s 59A(1)(b) of the Road Traffic Act 1974 (WA).

2 Section 59A(1)(b) of the Road Traffic Act provides that if a motor vehicle driven by a person 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 driver commits an offence.

3 The matter was brought on for hearing in the Magistrates Court of Western Australia at Perth on 12 August 2008 before his Honour Magistrate Calder.

4 It was common ground at the hearing, having regard to what was said in the course of opening exchanges, that bodily harm was conceded. Further, the identity of the appellant as the driver of the vehicle involved in the incident was conceded. The only live issue was whether the appellant was driving in a manner that was, having regard to all the circumstances of the case, dangerous to the public or any person.

5 The charge arose out of a collision that occurred in Newcastle Street at about 3.45 pm on Wednesday, 4 April 2008. The appellant was attempting to turn right from Golding Street, Leederville to join the flow of traffic heading in an easterly direction along Newcastle Street. The appellant was therefore obliged to take account of westbound traffic approaching from the right and of eastbound traffic to her left, so that she could cross the route being taken by westbound traffic in order to find an opening and enter the route being taken by eastbound traffic.

6 Newcastle Street has two lanes in each direction at that point. As to the two lanes conveying the westbound traffic, it is apparent from the evidence that the kerbside lane to the appellant's right hand as she moved up Golding Street to reach the intersection with Newcastle Street was partially filled with parked cars that obstructed her view of the westbound traffic approaching on her right. This is apparent also from the bundle of 11 photographs comprising Exhibit 1 which were taken shortly after the collision when police officers reached the scene.

7 The complainant, Sarah Guala, was on a 750 cc Ducati motorcycle proceeding in a westerly direction along Newcastle Street when her motorcycle struck the right hand side of the appellant's silver coloured Holden sedan in the vicinity of the rear vision mirror attached to the front section of the driver's door. The complainant suffered bodily harm as a result.

8 The prosecutor adduced evidence from Sarah Guala to the effect that on the afternoon in question she was riding her motor cycle along Newcastle Street but as a result of the injuries she received she was not able to recall anything about the moment of collision.

9 She said that her injuries were torn ligaments, soft tissue damage to her legs, injuries to her hands and shoulders, bleeding to the brain and damage to the lower back.

10 The prosecution also adduced evidence from Rachel Jane Bentley who was driving a vehicle east along Newcastle Street and, to use her words, 'witnessed an accident where a motor bike rider went over the bonnet of a silver car'. (ts 6).

11 Ms Bentley said that it was a clear day but her view of the traffic ahead was impeded by a ute in front of her with a large cab. However, as soon as she got close to the point where Golding Street intersects with Newcastle Street the curb side lanes were largely blocked by parked cars with the result that her vehicle and the utility ahead of her were in the centre lane. She did not actually see the collision but as the ute ahead of her passed the point of collision she saw the body of the motorbike rider going over the bonnet of the silver car close to the centre lane. She did not see any events leading up to the point where both vehicles met because her view was blocked by the ute. The diagram drawn by Ms Bentley to describe the position of her own vehicle and of the other vehicles became Exhibit 3.

The silver car that you've drawn there?---Yes.

Are you able to tell his Honour how far the bonnet was from the centre double white lines you've drawn?---Mm'hm. It was about a metre from the centre double white lines, no more than two metres at most.

So we are talking - just hold it up. So just point. We are talking a metre from where to where?---We're talking a metre from the centre double white lines to the bonnet.

Are you able to say which lane the motorcycle was in at the point of impact?---At the point of impact, the motorcycle was in the centre-most lane and the motorbike rider ended up in the centre-most lane.

You have drawn some of the silver car in the centre lane as well?---Yes. (ts 9)

13 Ms Bentley added that she could not say for certain where the silver vehicle was heading towards because she did not see it moving before she saw the motorcyclist. The vehicle was stationary when she saw it.

14 In the course of giving her evidence-in-chief Ms Bentley was then questioned about the police photographs and a possible discrepancy between the position of vehicle depicted on the Bentley Exhibit 3 diagram and the scene depicted in the photographs.

15 As this was an issue which came up frequently in the course of evidence at the hearing, in closing addresses, and on appeal, I will summarise what was being put to Ms Bentley in this way.

16 Ms Bentley's Exhibit 3 diagram has the motorbike driven by the complainant situated in the centre lane of the west bound route. The Bentley diagram depicts the appellant's silver car positioned in the path of the oncoming motorbike and projected across the broken lines separating the curb side lane from the centre lane of the west bound route so as to occupy at least half of the centre lane.

17 Police photograph 1 was taken from the central double white line of Newcastle Street looking east (and thus from a vantage point close to that occupied by Ms Bentley when she first witnessed the incident). The photo shows an ambulance occupying the centre lane of the east bound route. It shows police officers and others standing or kneeling in the vicinity of the fallen complainant so that this cluster of individuals occupies most of the centre lane of the west bound route. This photo and the related photos show the bonnet of the damaged silver car projecting slightly over the broken line separating the curb side lane and the centre lane of the west bound route.

18 Ms Bentley was questioned about a suggested inconsistency between her testimony at the hearing which placed the bonnet of the appellant's silver car well into the west bound centre lane and the police photos in which the bonnet of the silver vehicle appeared to be only just across the broken line. More particularly, Ms Bentley was taken to photo 6 (taken from the west bound centre lane looking west). This showed the front bonnet of the silver vehicle (damaged on its right side in the vicinity of the rear vision mirror) situated slightly across the broken line separating the two lanes. The upended motorbike is lying to the east of the damaged vehicle across the broken line.

19 Ms Bentley maintained, quite firmly, that the silver vehicle was not in the position depicted in the photograph when she saw the point of collision. She then identified the point where the bonnet of the silver vehicle was at the moment of collision by placing a cross on photo 6. Ms Bentley's cross appears in the centre of the west bound centre lane on photo 6.

20 Ms Bentley was cross-examined at some length about these matters and the circumstances in which she came to give a statement to the police. She was questioned also about an assertion she had made early in her evidence to the effect that she was travelling west rather than east. She acknowledged that she was in error in that regard and had in fact been travelling east. She continued to assert that at the moment of impact the appellant's silver car was not in the position portrayed in the photographs but was further forward so as to occupy more of the west bound centre lane.

21 Police Officer Michael Peter Crook, who is the respondent in the present appeal proceedings, gave evidence to the effect that he received a radio message about 3.45 pm on the day in question and went to the scene of the accident with Senior Constable Anicich. An ambulance was there and this plus the accident scene had blocked the road so that traffic could not flow across that section of Newcastle Street. The silver vehicle was 'substantially in the curb side lane' directly in front of the exit of Golding Street (ts 19).

22 Police Officer Crook confirmed that the motorcyclist was still on the road as portrayed in photo 1 of the Exhibit 1 bundle. The photographs were taken by his partner, Senior Constable Anicich. He said that the photographs were taken a few minutes after their arrival at the scene.

23 Police Officer Crook agreed that the complainant's body was closer to the broken white line than to the centre white line. The broken white line ran under the front of the silver car.

24 Police Officer Crook went on to describe the circumstances in which he interviewed the appellant. She was distraught. However, having cautioned her, he received from her an account of the accident. He was told by her that she was coming out of Golding Street and that her view on Newcastle Street was obscured by parked cars. She edged forward into the curb side lane to gain visibility. She believed it was safe to do so because she was not expecting anything to come from her right. The parked cars were blocking anything approaching from the right. She had to look to the left as well but in the process of looking left, her car was slightly moving forward. It was basically when she turned her head back to the right to see if it was clear that the impact occurred.

25 It emerged during the course of the hearing that Police Officer Crook, reduced the appellant's statement to writing. This statement was signed by the appellant and received in evidence in due course as Exhibit 4.

26 The statement made by the appellant on the day of the incident at 4.50 pm reads as follows:

I was driving a Holden sedan 1CLB 058 in a northerly direction of Golding St in North Perth.

I came out onto the intersection of Newcastle Street and I was facing a give way sign. I knew the traffic on Newcastle Street would be busy because I take the same route at roughly the same time each day.

When I got to the intersection I stopped almost on the white line. Looking to my right Newcastle Street has two west bound lanes. The lane closest to the kerb had cars parked in it, the closest one was only a short distance away.

These cars were blocking my view of the west bound cars in the lane closest to the centre of the road.

I edged out into the kerbside lane so that I could see the traffic in the centre lane. I believed it was safe to move forward into the kerbside lane because no traffic could come along it as it was blocked by the parked cars.

I stopped before the broken centre line but I can't say exactly where I was looking to my left and the way was clear. I looked to my right and the way seemed clear.

Next thing I saw a motor cycle approaching on my right. I was still stationary - I saw the bike wobble and then the bike hit my car between the driver's side door and the front wheel. It is possible I put my foot on the accelerator - in panic - when I saw the motor cycle but I can't say for sure.

28 The appellant, Cherie Jessica Ansell, gave evidence at the hearing. She said that she was 23 years of age. She said that in the course of her work she used to pick up mail from North Holden, and having done so, would follow the route up Golding Street from Monday to Friday.

Don't go too fast because the magistrate is writing it down. Okay?---So pulling out of Golding Street, I was attempting to turn right so going back towards Charles Street and when I was pulled up, I couldn't see anything. There were cars on my right and my left-hand side so I pulled out slightly to have a look.

HIS HONOUR: Slow down a bit.

LOVEDAY, MS: How far did you pull out?---It'd be about halfway between - to from that street here a little bit or to the line, I should say, and had looked to my - - -

Which line?---The broken line, broken white line.

So what line did that - what lane that did that line relate to?---The corner, the kerbside lane.

Kerbside lane?---Yes.

As his Honour was describing before. So you pulled out to the lane?---Yep.

The kerbside lane?---Yep. It wasn't full to the line, it was sort of just before it and I looked left and as I looked right at, yeah, the motorbike hit the door.

So you looked left?---Yep.

Then you did what?---Looked back to my right to see if it was clear to go and the motorbike was coming towards me.

How fast were you going when you were looking to your right?---I was stopped.

And when did you actually see the bike?---It was split seconds, like all I saw was her wobbling so obviously she was braking and then it was smack into the door.

So what happened after that?---I just sat - like, I saw her land on the bonnet, she was looking in the mirror - in the window and I just sort of screamed and put my - put the car into park and that's pretty much it and then it was only seconds after that, someone ripped the door open and helped me out. (ts 37, 38)

30 The appellant went on to say that after the accident she was taken across to City Motors. She could recall speaking to Police Officer Crook but could not remember making a statement to him about the accident. However, after examining her statement, she conceded that she had signed it.

31 In the course of her evidence-in-chief she then gave further evidence as follows:

LOVEDAY, MS: What position - how fast were you going, Cherie, when this happened?---I was still and to move, I didn't even put my foot on the accelerator, it's an automatic, it just sort of crept out.

So you weren't accelerating?---No.

The car was stationary and the first thing you knew was when the bike hit you?---Yep.

What lane were you in?---The kerbside lane.

Why were you in the kerbside lane?---To see if I could pull out because my view was obstructed by parked vehicles on the left and right side. (ts 39, 40)

32 Under cross-examination the appellant denied that she was in a hurry to get back to her own office so that she could finish work. She agreed that the traffic was busy as she approached Newcastle Street. She moved into the kerbside lane of Newcastle Street because she did not have a clear view. As to these matters she gave evidence as follows:

PROSECUTOR: The traffic was busy?---Yes.

You couldn't really see very well, could you?---Well, that's why I moved out.

You didn't have a clear view?---No.

So you moved your vehicle into the continuing road on Newcastle Street?-The kerbside lane.

You moved out of Golding Street and moved your vehicle onto Newcastle Street?---That's correct.

Because you couldn't see?---Yes.

Can I have a look at the photographs please. Did you see the motorcycle coming?---Only the split seconds before it. Like I said, I saw her wobbling so that's obviously when she was braking and then it was a matter of seconds that she hit. (ts 41)

33 Under further cross-examination she acknowledged that her memory of the day in question was not good (ts 42). She denied that after the collision she put her car into reverse or that the engine cut out and it rolled backwards. She denied that her car was pushed backwards due to the impact of the motorbike.

34 Counsel for the respective parties then proceeded to closing addresses.

35 In the course of his reasons for decision the learned magistrate found that the appellant was familiar with the intersection. On the day in question she had a limited view to her right due to the cars parked along the kerbside lane. She was cautious as she edged out into Newcastle Street. She had looked to her left and then her right immediately before the collision. He found also the impact did not move the car back as it was automatic and in drive at the time of the impact. However, he was of the view that the appellant's vehicle had been moved back at some stage so that the photographs did not correctly portray where it was situated at the moment of impact. In reaching that conclusion the magistrate was clearly minded to give weight to the evidence of Ms Bentley and her testimony to the effect that the silver car was further forward than portrayed in the photographs.

36 In the course of his reasoning the magistrate reviewed a number of specific factual issues. The appellant had said that because she could not see anything to her right because of cars parked in the kerbside lane she 'pulled out a bit to the line'. The magistrate found that by the 'line' she means 'the line dividing the two west bound lanes' (ts 53).

37 He found that the statement she made to Police Officer Crook was made voluntarily. The magistrate then dealt with that portion of the statement in which she said that when she got to the intersection she stopped almost on the white line and then added 'looking to my right, Newcastle Street has two west bound lanes'. As to that matter the magistrate then made this observation:

I don't take that as her meaning she actually looked to the right. I think that's simply descriptive of the directions that she was referring to for the purposes of describing her location. She said the lane closest to the kerb had cars parked in it. The closest one was only a short distance away. (ts 55)

38 In other words, importantly for present purposes, the magistrate did not proceed from the premise that upon arriving at the intersection the appellant looked right, then looked left, and proceeded to look right again, at which time the collision occurred. The tenor of his reasoning as to the effect of her statement was that she arrived at the intersection, perceived in general terms that looking to the right would be difficult due to parked cars on the right in the kerbside lane. It was then that she edged forward, looked left (for an opening in the east bound traffic on the far side of the road presumably) and then looked right.

39 Further on, the learned magistrate made these observations:

I find however that the car was further into the intersection than the accused has said when the collision occurred. I draw the inference that the bike was not being driven in the kerbside lane at any material time. I think that's the only inference that's reasonably open, that the bike was simply not being driven in the kerbside lane and I infer that it was being driven fully within the centre lane. (ts 57)

I find that she looked first to her left which was to check for cars travelling in an easterly direction and the only lane in which cars were travelling at the time because the other lane had parked cars in it.

...

I don't know how many cars were parked there but, in any event, she looked to the left first. I accept that as I have said, I find that she was stationary. I find that she looked to her right and by that time she had, as I find, placed her vehicle in the path or extremely close to the path of the motorcycle. It was too late to do anything and the collision occurred. I'm not able to and not prepared to make any further finding as to the location of the vehicle as at the impact. It follows though that I am satisfied that at some stage and by some means the vehicle was moved back. (ts 57, 58)

41 The learned magistrate proceeded to review the legal principles bearing upon a case of this kind and, in doing so, looked particularly at a recent ruling of the Court of Appeal in this State in McPherson v Lucas [2008] WASCA 56; (2008) 181 A Crim R 587. I will have more to say about that case later. However, having looked at the reasoning in that case, and having noted that the driver in that case was held to have been properly acquitted by the Court of Appeal, the learned magistrate drew together his various observations in the following passage:

The circumstances which led the Full Court to accept, as did the magistrate, that Mrs McPherson had done all that she as a prudent driver could have been expected and required to have done are not comparable to the circumstances that existed at the time when the accused placed her vehicle on the road in the position that she did. Even if she had looked to the right at the beginning, I think the only inference - that's expressed not very well. If before she had placed her vehicle into the centre-most lane of Newcastle Street, she had carefully and consciously looked to her right, I'm satisfied that she would have seen the bike and that by not looking to the right first, she failed to do that.

The conclusion I have reached is that her manner of driving was dangerous. She was cautious. Being cautious doesn't necessarily mean the driving is not dangerous. Her manner of driving in effect was that she placed the vehicle so far into that intersection that it was in the path of an oncoming vehicle, namely the motorcycle; that that occurred at a time when I infer that the motorcyclist was unable to take sufficient evasive action. (ts 66)

42 It was pursuant to this reasoning that the learned magistrate proceeded to convict the appellant. Her Honour imposed a fine of $800 and suspended the appellant's motor driver's licence for a period of 12 months.

43 By an appeal notice dated 28 August 2008 the appellant applied for leave to appeal against the conviction on the grounds that, first, the magistrate erred in fact in finding that the appellant did not look to her right; second, the magistrate erred in law in finding, against the weight of the evidence, that her car was moved after the collision.

44 At the hearing before me the appellant applied for leave to amend the grounds of appeal in terms of a minute dated 10 December 2008 and this application was not opposed. Leave to amend was allowed with the result that the grounds of appeal relied upon by the appellant are as follows:

1. The learned magistrate erred in law in failing to apply the correct legal principles when determining whether the applicant was 'driving in a manner ... that [was], having regard to all the circumstances of the case, dangerous to the public or any person'
2. The learned magistrate erred in law in failing to direct himself at all in relation to the onus and standard of proof in a criminal trial.
3. The learned magistrate erred in law in finding:

(i) that the applicant's vehicle was across the centre lane of Newcastle Street at the point of impact when there was a conflict of evidence and no reasons were given for preferring the evidence of the prosecution witness Ms Bentley over the applicant at all;

(ii) alternatively to 3(i), the finding was made in the absence of any evidence and based on speculation;

(iii) that the applicant put herself into the path of the motorcycle when he found that the applicant's vehicle was stationary immediately before and at the time of impact;

(iv) that the applicant's vehicle had been moved after the accident when there was no evidence to support that finding;

(v) alternatively to 3(iv), drew an inference adverse to the applicant when there was a reasonable and competing inference available favourable to the applicant viz., that the applicant's vehicle was located where it was shown in the photographs tendered by the prosecution at the point of impact;

(vi) that the applicant failed to look to her right prior to the accident which finding was contrary to the evidence;

(vii) that, the motor cycle was travelling in the centre lane at the point of impact when there was no evidence to support that finding and which finding was based on speculation;

(viii) alternatively to 3(vii); drew an inference adverse to the applicant when there was a reasonable and competing inference available favourable to the applicant viz., that the motor cycle was in the kerbside lane at the point of impact.

45 It will now be useful to look at the legal principles and statutory provisions bearing upon the matters in issue.

46 Appeals from the Magistrates Court are now governed by the Criminal Appeals Act 2004 (WA). By s 14 of that 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 appellant.

47 It is apparent from s 39 of the Criminal Appeals Act that an appeal court must decide the appeal on the evidence and material that were before the lower court, but this does not prevent consideration of any evidence that the lower court refused to admit. By s 40 an appeal court may admit any other evidence.

48 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; [1999] WASCA 32.

49 Section 9(2) of the Criminal Appeals Act postulates a presumptive refusal of leave unless the court is brought to the positive satisfaction that a ground of appeal has a reasonable prospect of succeeding. This necessarily requires that more is to be shown than that the ground is arguable: Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193 at 486; Re The State of Western Australia; Ex parte Worswick [2005] WASCA 187 at [11].

50 The appellate court is required to conduct a real review of the trial by weighing conflicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at 126 - 127.

51 In giving due allowance to the advantage of a trial judge, an appellate court must not set aside a finding of fact by a trial judge based on the credibility of a witness because it thinks that the probabilities of the case are against that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge has failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: De Vries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Fox v Percy per McHugh J at 139.

52 As to the nature of dangerous driving, the decided cases indicate that negligence is not an element of dangerous driving. Negligent driving is not necessarily dangerous driving. Thus, failure to keep a proper lookout on a road on which there is no other traffic and there is no person in the vicinity is not dangerous driving. For the driving to be dangerous it must in reality, and not speculatively, be actually or potentially dangerous to the public or another person. The test as to whether driving is dangerous is objective. A momentary lapse of attention may constitute dangerous driving. See Kaighin v The Queen (1990) 1 WAR 390.

53 The law on this subject was recently considered at some length in McPherson v Lucas. In that case the Court of Appeal held that a driver who was involved in a collision while entering a busy main road was properly acquitted.

54 McLure J observed at [20] to [21] that the contention that a driver who contravenes the give way road rule resulting in a collision with a vehicle who had right of way must be driving in a matter that is dangerous to the public is incorrect.

55 McLure J observed at [24] that an offence under s 59A is not established by demonstrating that the incident resulting in bodily harm was caused by the driver failing to drive with due care and attention. She approved the reasoning of the High Court in Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at 579 where it was said that the manner of driving encompasses all matters connected with the management and control of a car by a driver when it is being driven. For the driving to be dangerous there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention.

56 Her Honour went on to note that the Road Traffic Act differentiates between dangerous driving and careless driving. If it were otherwise, all breaches of a tortious duty would, because of the inevitable risk of harm to the public associated with driving a motor vehicle, constitute dangerous driving.

57 Her Honour then made further observations at [31] to the effect that the relevant fact in issue is the actual driving behaviour of the driver. The objective physical movement of the car is only a fact from which an inference about the actual driving behaviour of the driver can often but not always be drawn. It will most often be drawn when the driving is intrinsically dangerous regardless of the circumstances. It will be drawn less often when the quality of the driving depends on the surrounding circumstances.

58 The correct position is that it is necessary to first make factual findings as to the actual driving behaviour of the driver. Whether or not the driver looked for oncoming traffic is part of the manner of driving and is relevant. The objective question is whether the manner of driving so found on the facts has the necessary quality of being dangerous to the public. In making this objective assessment a regard is had as to what the driver knew or ought reasonably to have known.

60 As to the first ground of appeal, namely that the magistrate failed to apply the correct legal principles, counsel for the appellant submitted that the magistrate failed to distinguish the requirement of 'dangerousness' in the context of a criminal prosecution from concepts of 'want of care'.

61 It was said further that the error is apparent from the fact that the magistrate found a number of aspects of the appellant's driving which showed appropriate due care and attention.

62 In dealing with this ground I must begin by noting that the ruling of the Court of Appeal in McPherson v Lucas must now be regarded as the crucial point of reference in regard to the concept of dangerous driving. However, the magistrate was clearly aware of that state of affairs and referred to the case in question at length.

63 I digress briefly to say that, to my mind, there is nothing in McPherson v Lucas which can be taken as refuting an assumption that appears to underlie one aspect of the magistrate's reasoning, namely, that one can drive in a manner that is intrinsically dangerous, although care is exercised. The most obvious example in that regard would be for a driver to drive on the wrong side of a busy road. No matter how slowly, cautiously and carefully the excursion is undertaken the driving of a car in that manner is intrinsically dangerous, at the very least because the instincts and lawful habits of the oncoming drivers would be cast into disarray to an extent which is likely to cause collisions and secondary accidents.

64 Thus, in the present case, findings to the effect that in some respects the appellant exercised care cannot be regarded as a conclusive answer to the charge or as a decisive demonstration that the magistrate erred in the manner contended for by the appellant in the first ground.

65 On the other hand, there is force in the appellant's contention that, having regard to McPherson v Lucas, it is not enough for the prosecution to establish simply that the driver failed to drive with due care and attention. It is apparent from the reasoning in McPherson v Lucas that there must be some feature which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle.

66 To my mind the magistrate's review of the reasoning in McPherson v Lucas and his acknowledgement that there was a degree of care on the part of the appellant showed that he was cognisant of and gave proper weight to this approach. In fact, his findings were directed to that end.

67 This is reflected in his reasoning. Newcastle Street was found to be busy at the time and there was therefore obviously some risk involved when the appellant edged forward into Newcastle Street to obtain a better view of the traffic flow. The magistrate then proceeded to a crucial finding as to the manner and extent to which she took steps to position herself so that she could assess oncoming traffic on her right.

68 Having studied the statement made by the appellant shortly after the collision, the magistrate concluded that although she may have spoken in general terms about the presence of parked cars to her right, she did not say positively that she had looked to the right in the sense of appraising the approach of oncoming vehicles from that direction.

69 The magistrate's conclusion was that by the time she looked to the right she had 'placed her vehicle in the path or extremely close to the path of the motorcycle'. A related conclusion was that if she had carefully and conscientiously looked to her right 'she would have seen the bike and by not looking to the right first, she failed to do that'.

70 On the magistrate's finding, having edged forward, the appellant looked left, and by the time she looked right for the more specific purpose of appraising the movements of oncoming traffic, she had placed herself in the path of oncoming traffic in a manner which did not allow time for evasive action by the motorcyclist and this state of affairs made the collision inevitable.

71 To my mind, it was open to the magistrate to make these findings having regard to the admissions contained in the appellant's confessional statement and the testimony of the witness Ms Bentley. The latter's evidence was tested by cross-examination but adhered to in an emphatic way. The magistrate noted that the appellant's evidence was consistent with that of Ms Bentley in that she (the appellant) 'saw the motorcyclist land on the bonnet' (ts 53). He noted that the evidence of Ms Bentley was consistent with the location of the motorcyclist on the ground as depicted in the police photographs. Matters of this kind substantiated the Bentley evidence.

72 Other evidence, such as the nature of the damage to the silver car and the position of the motorcyclist on the road as portrayed in the photographs, was consistent with the facts and matters principally relied upon by the magistrate in concluding that the appellant had placed herself in the path of the oncoming motorcyclist having failed to exercise care by looking to the right. To my mind there was no evidence directly inconsistent with the findings made by the magistrate. It cannot be said that his Honour acted on evidence that was inconsistent with facts incontrovertibly established or which was glaringly improbable.

73 Against this evidentiary background, the magistrate was able to conclude that the act of pulling out into a busy intersection, without assessing the approach of oncoming traffic on the right with sufficient care, in circumstances in which the appellant did not have the right of way, went beyond a mere absence of care and could be characterised as creating a distinct hazard. His conclusion was that 'her manner of driving in effect was that she placed the vehicle so far into that intersection that it was in the path of an oncoming vehicle, namely, the motorcycle'. This occurred at a time when the motorcyclist was unable to take sufficient evasive action.

74 Having regard to the way in which the evidence came forward, it might be said that the magistrate acknowledged that there was some ambiguity as to the precise degree to which the appellant's car had placed itself in the line of oncoming traffic and as to the exact point of collision. However, in the end, the reasoning of the magistrate was consistent with the requirements enunciated in McPherson v Lucas. That is, the magistrate made findings as to the movements of the subject vehicle, namely, that it was being edged forward by the appellant in order to obtain improved visibility until it was in the path of or represented a hazard to oncoming traffic with the right of way.

75 The magistrate then proceeded to the further question of whether the movements by the vehicle were combined with a failure to look right to assess the risk from oncoming traffic or, putting it another way, as to whether the appellant had failed to exercise sufficient care in commencing to cross the two west bound lanes of Newcastle Street with a view to entering an east bound lane along Newcastle Street.

76 In the absence of such care, on his finding, the appellant's car in the circumstances was being driven in a dangerous manner. Inherent in his conclusion was a decision to give greater weight to the direct observation of the witness Ms Bentley and her account of the immediate consequences of the impact. She placed the point of collision in the centre of the centre west bound lane. The magistrate gave weight to the Bentley evidence and, as I have indicated, other evidence that was consistent with it rather than relying upon inferences to be drawn from the photographs.

77 To my mind, the findings made by the magistrate were open to him. Further, it follows from the decided cases mentioned earlier that findings made by the court of first instance should generally be respected and should not be dismissed or set aside unless it can be said that the magistrate has acted on evidence that is inconsistent with facts incontrovertibly established by the evidence or which is glaringly improbable. Inferences drawn from the photos cannot be characterised as being of that order. The Bentley evidence provided a basis for concluding that the subject vehicle may not have been in the position depicted in the photos at the moment of collision due to the force of the impact or movement of the vehicle by a third party after the incident.

78 Moreover, on any view of the matter, the central feature of the scene is that the appellant had edged her vehicle forward until it had at least arrived at a position where its bonnet had crossed the broken white line with the result that it represented a hazard to oncoming traffic with the right of way. She had, as the magistrate found, placed the vehicle 'so far into that intersection that it was in the path of an oncoming vehicle'. The crucial finding was not a determination as to the exact point of impact but that the vehicle had encroached upon the intersection to a hazardous extent.

79 If the appellant had exercised sufficient care in looking to the right to ascertain that there was no oncoming traffic in the immediate vicinity her vehicle may not have been a hazard or at risk of being struck by oncoming vehicles, notwithstanding the encroachment. However, on the magistrate's finding, having regard to the statement she made and the evidence of Ms Bentley, in proceeding as far as she did without properly appraising the risk from oncoming traffic by looking to the right at an early stage, she failed to exercise proper care. In those circumstances she was driving in a manner that was dangerous to the public.

80 I am of the view that in a complex situation of this kind, and at a time when there is room for debate about the proper application of the relevant legal principles, it cannot be said that the appellant did not have a real prospect of succeeding on this ground of appeal. Accordingly, I am of the view that she should be granted leave to appeal. However, it follows from the reasons I have just provided, that the appeal on this ground must be dismissed because the magistrate did not err in the manner alleged in the first ground of appeal.

81 The appellant contended in the second ground of appeal that the learned magistrate erred in law in failing to direct himself at all in relation to the onus and standard of proof in a criminal trial.

82 As to this ground of appeal, counsel for the appellant submitted that the learned magistrate fell into error by not considering the onus and standard of proof so that when making a finding he had to consider whether there remained a reasonable doubt or whether the inference he was drawing was the only one reasonably open on the evidence.

83 Further, it was said that this error compounded and led to the learned magistrate making a finding that there was a conflict between the prosecution witness, Ms Bentley, and the appellant as to which lane the appellant's vehicle was in when the collision occurred. However, he failed to give any reason for preferring the prosecution witness's evidence or whether he was left with a reasonable doubt.

84 In Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 at 515 Brennan J observed that when a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, the question arises as to who is to be believed. However, in a criminal trial, it is essential to ensure, by suitable direction, that the answer to that question, if adverse to the defence, is not taken as concluding the issue of whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. Finders of fact, even if they prefer the evidence of the prosecution, should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. Even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.

85 There are various passages in the transcript of the hearing which indicate that the magistrate's reasons for decision, taken as a whole, show that he correctly appreciated that the respondent bore the onus of establishing each element of the offence beyond reasonable doubt. He said that the appellant 'has no onus of proof' (ts 65). He went on to say later that 'the other elements of the charge have been proved beyond reasonable doubt' (ts 66). He concluded his reasons for decision by saying that he found the charge proved beyond reasonable doubt.

86 To my mind, it appears from his reasons for decision that the magistrate drew upon various facets of the evidence in concluding that the appellant had placed her vehicle in the path of oncoming traffic so as to create a hazard without exercising sufficient care in assessing the risk posed by oncoming traffic. The tenor of his reasoning indicates that he did not simply choose between the versions provided by two competing witnesses but ultimately reviewed the evidence as a whole in order to arrive at a conclusion that dangerous driving had been established beyond reasonable doubt. As I have indicated in the course of discussion concerning the first ground, he did not act on the Bentley evidence in an uncritical way. He took account of other facets of the evidence, including the appellant's evidence and the position of the motorcyclist on the ground, which were consistent with and tended to substantiate the Bentley evidence.

87 As with the first ground of appeal, I am prepared to grant leave to appeal, but do not consider that the second ground of appeal has been made out.

88 The appellant asserts in the third ground of appeal that the learned magistrate erred in law in making various findings. The disputed findings are set out in full in the ground of appeal as appears in earlier discussion. In various ways the matters relied upon echo contentions advanced by the appellant in support of her first and second grounds of appeal.

89 As to point (i), being an alleged error in finding that the appellant's vehicle was across the centre lane and with no reasons being given for preferring the evidence of Ms Bentley above the appellant, I refer to earlier discussion in which I noted that the evidence of Ms Bentley was considered in conjunction with other evidence including admissions made by the appellant in her confessional statement. I refer also to earlier discussion in which I noted that the crucial finding was not that the appellant's vehicle was across the centre lane but that it was so far into the intersection that it was in the path of an oncoming vehicle.

90 For these reasons, I do not consider that the magistrate erred as alleged in point (i). These reasons and the related conclusion dispose of the assertion in point (ii) that the finding was based on speculation.

91 As to point (iii), being an alleged error in finding that the appellant put herself into the path of the motorcycle at a time when the appellant's vehicle was stationary, this point appears to me to be a matter of semantics. The appellant's vehicle may have been stationary at the moment of impact but in bringing it to a position on the intersection where it represented a hazard, it was open to the magistrate to conclude that it had been placed in the path of an oncoming vehicle.

92 As to points (iv) and (v), being an alleged error in finding that the appellant's vehicle had been moved after the accident, it follows from earlier discussion that even if it be thought that the evidence did not support such a finding, this is in the nature of a subsidiary finding and such an error does not give rise to a miscarriage of justice. This is because the principal finding was that the appellant's vehicle had been moved to a position where it was in the path of oncoming traffic even if there were a degree of ambiguity as to the precise location of the vehicle at the moment of the collision.

93 As to point (vi) being an alleged error in finding that the appellant failed to look to her right prior to the accident, I have dealt with this matter in earlier discussion. To my mind such a finding was open to the magistrate.

94 The appellant's evidence was that she was attempting to turn right into Newcastle Street, her view was blocked by parked cars and so she 'pulled out slightly to have a look' (ts 37). The appellant looked left first, and as she looked right 'the motorbike hit the door' (ts 37). The evidence of the appellant herself therefore does not indicate that she looked to her right prior to pulling out.

95 For the reasons given previously, the account she provided in her written statement on the day of the accident, was open to the interpretation placed upon it by the magistrate. As I indicated in earlier discussion, she commenced her description of the scene by saying: 'looking to my right Newcastle Street has two west bound lanes'. This suggests, as the magistrate found, that she 'looked' in the sense of taking in that there were parked cars to her right. This is distinct from a specific assertion that she looked to the right with a view to appraising the movement of oncoming traffic on her right. I do not consider that any error of fact on the part of the learned magistrate is revealed by this ground of appeal.

96 As to points (vii) and (viii), being the suggestion that the learned magistrate erred in finding that the motorcycle was travelling in the centre lane at the point of impact and, further, that he drew an inference adverse to the appellant when there was a reasonable and competing inference, I refer to earlier discussion to the effect that it was open to the magistrate to give weight to the evidence of Ms Bentley and to the other evidence that tended to support it.

97 Again, as to this ground, because there is some force in the appellant's contentions, I am of the view that leave to appeal should be granted. However, for the reasons I have given, I do not consider that the magistrate erred as alleged, or erred in a manner sufficiently characterised as giving rise to a miscarriage of justice, I do not consider that the appeal should be allowed on this ground.

98 It follows from my earlier observations that the appellant is to have leave to appeal in respect of the various grounds but the appeal will be dismissed. I will hear from the parties as to whether any further orders or directions are required.