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[2002] WASCA 14
Court of Appeal (WA)
2002-02-15
Mr J, Miller J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : DUNJEY -v- CROSS [2002] WASCA 14
Justices - Driving offences - Reckless driving - Failing to obey direction of a member of the police force - Failing to stop when called upon to do so - Sudden or extraordinary emergency - Whether negatived by prosecution - Principles to be applied
Justices Act 1902, s 46, s 199(1)(g)
Attree v Randell (1993) 19 MVR 95
Cook's Hotel Pty Ltd v Pope (1983) 34 SASR 292
Kane v Dureau [1911] VicLawRp 58; [1911] VLR 293
Larner v Dorrington (1993) 19 MVR 75
Lederer v Hitchins [1961] WAR 99
Mitchell v Myers (1955) 57 WALR 49
R v Conway [1988] EWCA Crim 1; [1988] 3 All ER 1025
R v Howe [1981] EWCA Crim 5; (1982) 1 All ER 801
R v Martin [1988] EWCA Crim 2; [1989] 1 All ER 652
Warner v The Queen [1980] QdR 207
1 MILLER J: The appellant was charged in the Court of Petty Sessions, Midland, with three road traffic offences which were alleged to have occurred on 14 February 2001 at Lansdale when she was the driver of a motor vehicle registered number 9AC 743 on Kingsway and Alexander Drive, Landsdale.
2 The first charge alleged that the appellant, whilst driving on Kingsway, had failed to obey the oral direction (or signal by hand) of a member of the police force, contrary to reg 272(1)(a) of the Road Traffic Code 2000 ("the Code"). The second charge alleged that the appellant had wilfully driven the motor vehicle on Alexander Drive in a manner that was, having regard to all the circumstances, inherently dangerous, contrary to s 60(1) of the Road Traffic Act 1974 ("the Act"). The third charge alleged that the appellant, whilst driving the vehicle on Alexander Drive and when called upon to stop her vehicle by a member of the police force, had refused (or failed) to stop contrary to s 53(1)(b) of the Act.
3 The appellant pleaded not guilty to all charges. They were heard before Mr F Cullen SM in the Court of Petty Sessions at Midland on 17 August 2001. At the conclusion of the hearing the appellant was convicted on each charge. On 24 September 2001, she was given leave to appeal those convictions. The grounds of appeal in relation to the conviction for the offence against the Code contend that the learned Magistrate erred in law in holding that the complaint disclosed an offence known to law and erred in law in holding that the provisions of s 25 of the Criminal Code were inapplicable because they firstly required a threat of physical harm or injury to another human being, not a threat to property; and secondly in holding that there could have been no sudden emergency in the case because the appellant, when she had left her premises, knew that there was some danger to the property in question.
4 The grounds of appeal in relation to the conviction for reckless driving contend that the learned Magistrate erred for the same reasons in relation to the applicability of s 25 of the Code and in addition contend that the learned Magistrate erred in convicting the appellant without finding that she was aware of the consequences or likely consequences of her manner of driving and proceeded recklessly, indifferent to whether those consequences might or might not occur. The grounds of appeal in relation to the conviction for failing to stop when called upon to do so contend that the learned Magistrate erred in relation to the applicability of s 25 of the Code for the same reasons advanced in relation to the other matters.
5 The evidence at the hearing reveal that on the afternoon of 14 February there was a bushfire in the Landsdale area. Police were on duty at various intersections to control traffic and a road block was set up at the intersection of Kingsway and Alexander Drive to prevent any vehicles travelling north upon Alexander Drive.
6 The appellant is a married woman who, at the relevant time, lived at 583 Alexander Drive, Landsdale. This was a 10 acre property on which she and her husband ran a turf farm. The bushfire was in the vicinity of the appellant's home and although she had been at home during the day she left home in the afternoon to pick up her daughter from school. She was returning to her home at about 4pm and at that time the fire was raging some few kilometres from her property, but looked to be heading towards it. She was anxious to get home to turn on the reticulation.
7 When the appellant approached the road block at the intersection of Kingsway and Alexander Drive she was stopped by Constable Rodney William Revell. His evidence as to what then transpired was as follows:
"PROSECUTOR: And why did you stop that vehicle? --- I had cause to stop it, like --- I had cause to stop her because she was trying to go through a restricted area of Alexander Drive.
Why was this a restricted area? --- Police communications patrol post had pointed out to us that the bush fires had come very close to the road and they were to restrict entry to authorised vehicles only.
And when you say 'authorised vehicles' what type of vehicles are you referring to? --- For example fire trucks and ambulances.
And when you saw this Ford sedan, what happened then? --- I noticed the female driver ... who I now know to be Linda Mary Dunjey, the defendant present in court. I said, 'Excuse me, madam, but at this stage I can't ...'
Slow it down a little bit? --- I said, 'Excuse me madam, at this stage I can't let you proceed past this point, because the bush fires are coming very close to the road.'
How were you dressed? --- I was dressed in a police pushbike uniform at that stage, clearly marked with a police badge and 'Police' written on the back.
And after you advised Ms Dunjey she couldn't proceed, what happened then? --- She said, 'I have to get home and turn the reticulation on, and my dog is in the house.' I said, 'Madam, I can't let you --- I believe it's too dangerous for you and your daughter to --- you and your child to go up there.' She became very upset and agitated towards me. She then said, 'I don't care. I have to go home. I only just live up the road.' I then took up position in front of the vehicle. She said --- I said, 'I can't let you go through' I said, 'Please, settle down and think about what you're doing.' She said, 'I'm going to go --- I have to go home and you can't stop me, so get out of my fucking way.' The defendant then accelerated quickly and I had to jump out of the way. Unfortunately the mirror on the driver's side connected with my elbow on the left side of my body, causing me to stumble slightly backwards. I then noticed a police patrol motorcycle heading towards the road block. I said, 'That vehicle's just run the road block.' The police motorcycle --- the police patrolman pursued after the vehicle. I had no further dealings with the defendant after this."
8 Further along Alexander Drive was another police officer. He was Constable Raymond Dennis Hillier, whose evidence was as follows:
"HIS WORSHIP: I consent? -- On Wednesday the 14th of February 2001 I was on duty and conducting points duty at the intersection of Kingsway and Alexander Drive in Landsdale. I was conducting points duty at the intersection due to a bush fire in the area. A road block was set up to prevent vehicles travelling north upon Alexander Drive. At about 4.09pm I observed a Ford Falcon sedan, registered number I know now to be 9AC 743, turn left on Kingsway and proceed to travel in a northerly direction on Alexander Drive. I stepped onto the road and gestured to the driver of this vehicle to stop by raising my arm and pointing the palm of my hand towards the driver to stop. The female driver continued north on Alexander Drive, ignoring my instructions. I was then required to jump out of the way to avoid being hit by the defendant's vehicle. I then observed two marked police motorcycles proceeding to chase this vehicle north on Alexander Drive with their lights and sirens activated."
Constable Hillier stated the speed of the Ford Falcon sedan as it passed him to be 20 - 25kph.
9 At the same time there was a police officer on motorcycle duty. He was Constable Kimberley Phillip Cross. He observed the Ford sedan ignore the road block and he gave chase. His testimony was as follows:
"Can you relate to the court what took place at approximately 4.09 pm on that day, thank you? --- At about 4.09 pm I was travelling in an easterly direction on the Kingsway Road. I was approaching the intersection of Alexander Drive. At the time police were conducting a road block at this intersection to prevent vehicles from travelling in a northerly direction on Alexander Drive due to the bush fire. I then observed in front of me a Ford sedan, registration number 9AC 743 and I observed it to be stationary at this intersection, and that the driver was being talked to by a police officer. I then observed this vehicle to accelerate and turn to the left into Alexander Drove --- Alexander Drive, sorry, travelling in a northerly direction. And then I heard the police officer yell something.
Did you make out what was said? --- No.
I then activated the blue lights, or emergency blue lights and siren on my police issued motorcycle and then endeavoured to stop this vehicle from going any further. But then it continued in a northerly direction, accelerating away from police. I then drove up to the side of the vehicle, where I observed a female driver of this vehicle and a child in the front seat - a female child in the front seat. I then yelled to the driver to pull over and I also gestured with my hand for her to pull over. She seemed to ignore this and continued on. The defendant then continued in a northerly direction on Alexander Drive, approaching the intersection of Queensway Road where police was --- where there was a police manning that intersection. At the time there was a marked police vehicle parked halfway across the road to prevent vehicles travelling in a northerly direction on Alexander Drive. I then observed a police officer gesture to the driver to stop, for which she then went onto the incorrect side of the road without slowing down. I then positioned my motorcycle in front of the defendant's vehicle in an effort to slow her down and eventually stop her. The defendant's vehicle almost collided with my vehicle and I then positioned my vehicle to the side of the defendant's vehicle. The defendant then turned left into a driveway at 583 Alexander Drive, Landsdale. And we followed this vehicle up to a house on this property. The female driver then got out of her car and Senior Constable Beckers spoke to her. And she gave us the name of Linda Mary Dunjey, namely the defendant in court today. Senior Constable Beckers said, 'Why did you not stop when instructed by police?' She said, 'I had to get home to turn the reticulation on.' As a result of the bush fire we advised the defendant that she would be summonsed regarding this matter."
10 The defendant gave evidence in her defence. She admitted being flagged down by a police officer at the intersection of Kingsway and Alexander Drive. She said she informed the officer that she only lived up the road and she needed to get home to turn on the reticulation because she was anxious about the bushfire and needed to make the property safe. She described her feeling as being "very anxious and concerned about this bushfire" and being "worried about my house and my property and my whole life there". She gave evidence that the previous week there had been a delivery of 1200 litres of diesel in 200 litre drums and that these were in a big machinery shed. Her account of what happened when stopped by Constable Revell was as follows:
"All right. And you'd asked the police and explained to them your concerns. What happened then? --- I was refused to go up, and I said, 'Look, if --- I need to go up. And, you know, I have concerns about getting home and my property and I need to turn the reticulation on' and the police officers were saying, 'Ma'am, you can't go.' And --
All right. What did he then do? --- He stepped to the side and --- which left a gap in between the police vehicle and the side of the road, and ---
Just stop there. Okay? --- and I drove through, and I went."
11 Her account of what happened in relation to the second officer was in these terms:
"All right. Do you remember going past any other police officer as you went down towards your residence? --- Yes, there was another police officer just after the road block --- first road block, and he turned to face me, and --- and as I went past him he banged his hand on my --- the front of my bonnet."
12 The appellant agreed that she was followed by other officers on police motorcycles and eventually spoken to at her property. Her testimony as to the state of emergency that she apprehended was in the following terms:
"All right. Okay. And are you able to tell me, at the time, that is that time when you drove from the initial road block down to your residence, encompassing that whole way when you've said you've gone around the incorrect side of the road and the like. What was your state? --- I was anxious. I knew I had to get home to do what I had to do to make my property safe."
13 Although there was evidence from the appellant's husband about the property and the existence of diesel fuel at it, this testimony did not advance the case any further.
14 At the close of the evidence counsel for the appellant submitted to the learned Magistrate that the charge under reg 272(1)(a) of the Code did not disclose any offence known to law. That provision is in the following terms:
"272. Obedience to police or authorised persons
(1) Every pedestrian and driver shall obey the signal by hand or the reasonable oral direction given by a member of the Police Force or-
(a) an authorised person, if the signal or direction given by him or her is given for the purpose of ensuring the safety, or facilitating the movement, of traffic at or near the scene of an incident resulting in a dangerous situation;"
What counsel submitted was that the complaint did not allege a failure to obey the reasonable oral direction given by a member of the Police Force for the purpose of ensuring the safety or facilitating the movement of traffic at or near the scene of an incident resulting in a dangerous situation. Rather, the complaint was emasculated to allege only that the appellant, being the driver of the relevant vehicle, had failed "to obey the oral direction (or signal by hand) of a member of the Police Force".
15 The learned Magistrate considered the submission, but ruled that the essential elements of the offence were that there was a failure by the driver of the motor vehicle to obey the directions of a police officer and "the remaining words of the section" simply point out the circumstances in which those directions should be given. His Worship held that there was an offence disclosed by the complaint.
16 Counsel for the appellant then submitted then in relation to the charge of reckless driving the appellant was in a position of "extraordinary emergency" within the meaning of s 25 of the Criminal Code. Counsel pointed out that the prosecution was obliged to negative that defence when raised. He submitted that given the dangers of the bush fire to properties in the area and the potential of danger to the appellant's property where fuel was stored, it was impossible for the prosecution to negative a situation of extraordinary emergency. Further, it was submitted that the prosecution could not negate the fact that the appellant was honestly and reasonably, but mistakenly, acting under the belief that it was an extraordinary emergency. Counsel put the submission that the evidence would compel the learned Magistrate to find that the appellant was an ordinary person possessing ordinary powers of self control and she could not, in the circumstances, have been expected to act otherwise than she did.
17 Counsel for the appellant also submitted that (in the alternative) if there was no extraordinary emergency, the appellant had simply panicked and with her efforts of concentration fixed on getting to her property, it could not be said that she had deliberately driven recklessly indifferent to the consequences or the quality of her driving. She was said to have been "so consumed by panic that that was all that was dominating her mind, and ... she lacked the insight into the manner of her own driving (so) as to bring it (in)to (the category of) 'reckless' (driving)". It was conceded by counsel that she might be convicted of dangerous driving, or perhaps careless driving, but only if the learned Magistrate was satisfied that the prosecution had negatived the defence of extraordinary emergency.
18 Although not specifically articulated by counsel for the appellant, it was obvious that the defence of extraordinary emergency was also raised in relation to the charge that she had failed to stop when called upon to do so.
19 The learned Magistrate reviewed the evidence and concluded that the appellant was guilty of all three charges. He found that the appellant had accelerated away from the first officer, causing him to move aside and causing him to be struck by the driver's side rear vision mirror of the vehicle. He found also that the second officer had attempted to stop the appellant's vehicle by raising his arm with the palm of his hand, clearly showing that he wished the driver of the vehicle to stop, but he had been forced to jump aside to avoid being hit by the appellant's vehicle. He also found that when the motorcycle police officer pulled alongside the appellant's vehicle and gestured to her with his hand to stop, she ignored the directions and continued on.
20 The learned Magistrate's conclusion in relation to the charge of reckless driving was as follows:
"Reckless driving, of course, has been looked at on many occasions, with regards to matters and, of course, there has been decisions as to questions of fact which have been decided as to what is reckless and what is dangerous.
All of these matters, of course, in themselves, have an objective test with regards to the driving, whether or not driving is in fact reckless."
The learned Magistrate made reference to a number of the decided cases and concluded that the charge of reckless driving had been made out for these reasons:
"Well, not only in this case, in the prosecution case, do we have those essential elements; that is, the driving itself. Although no speed was involved there were police officers involved, who had attempted to stop the defendant on three separate occasions. Therefore, in my view, given that if one applies the objective test in relation to the manner of driving, then one could only concluded that the essential element of 'inherently dangerous' would apply to circumstances which are outlined by the prosecution evidence. And I might say, not disputed to a large degree by the defendant, with respect to the directions given to her by the police officers, while she went to her home in Alexander Drive."
21 In relation to the defence of extraordinary emergency, the learned Magistrate said:
"But here we have the defendant who is confronted by, or in the vicinity of her home, a bush fire in which she leaves the house, goes away, picks up her child, comes back, and then is stopped by a police officer who tells her she cannot continue any further because of the danger of the bush fire, and that the area was being cordoned off.
However, in my view, the prosecution case has negatived the question of the sudden emergency because there could not be a sudden emergency at that particular point, because the defendant knew when she left the premises that there was some danger with respect to her property.
Also, of course, the extraordinary emergency itself in this case applies to property and not to any physical harm or injury to any other human being. There was not, of course, in this case, any children who were in the premises. There may well have been a dog or some other animal but it did not relate to any other human being, which has been, I might say, the source of other matters which have been the subject of the application of this particular section of the Criminal Code."
22 His Worship's ultimate conclusion was as follows:
"There is, of course, in my view, no circumstances which would allow her to drive in this way. I do not accept, as I've said, that she can rely upon the extraordinary emergency the prosecution have negatived that matter and the prosecution have proved to the required standard beyond reasonable doubt the elements of each of the three charges, and I find the defendant guilty."
23 The first ground of appeal challenges the learned Magistrate's conclusion that the complaint alleging the offence against reg 272(1)(a) of the Code was good in law.
24 Unfortunately, when the learned Magistrate dealt with the matter he appears to have considered that the prosecution case relied upon both an oral direction and a signal by hand by a member of the Police Force to substantiate the charge. In the end, the learned Magistrate's conclusion was that the essential element of the offence was a failure by the driver of a motor vehicle to obey the directions of a police officer and this he considered to have been sufficiently set out within the complaint.
25 I must say in passing that the complaint could not be treated as making two allegations. That is, it could not have contained an allegation of failure to obey an oral direction, or a signal by hand, but only one. To do otherwise would be prima facie duplicitous. However, there is authority that if objection is to be taken to duplicity in a complaint it must be taken at the appropriate time. An indictment will not be held to be bad for duplicity on appeal: Chew v The Queen (1991) 4 WAR 21 per Malcolm CJ at 35. In any event, no point is taken in the grounds of appeal that the complaint was bad for duplicity and the matter was not argued before me. I simply make reference to it in passing.
26 It does, however, seem to me that the complaint alleging the offence under reg 272(1)(a) of the Code was bad in law. The complaint as framed should have alleged that the appellant failed to obey the "reasonable oral direction" given by a member of the Police Force, contrary to the provisions of reg 272(1) of the Code. The complaint actually alleged an offence under reg 272(1)(a) of the Code, but it would seem that an offence is committed under reg 272(1)(a) only in circumstances where an "authorised person" gives a direction for the purpose of ensuring the safety or facilitating the movement of traffic at or near the scene of an incident resulting in a dangerous situation.
27 The complaint is that the word "reasonable" was omitted from the words of the complaint. It was, and the omission meant that the complaint did contain a defect. However, s 46 of the Justices Act 1902 provides that no objection shall be taken or allowed to any complaint for any alleged defect therein, in substance or in form, and any such variance shall be amended by order of the Justices at the hearing. In this case no application was made to amend the complaint, but clearly it would have been in the interests of justice to allow such an amendment, had it been sought by the prosecution. As it happened, the learned Magistrate considered that the complaint adequately set out the ingredients of the offence charged and did not therefore of his own motion amend it. However, there is authority that on appeal under s 199(1)(g) of the Justices Act, the appellate court may make an order for amendment which it was in the power of the Court of Petty Sessions to make at first instance. I respectfully adopt what was said by Murray J in Narrier v Fallows & Anor, unreported; SCt of WA; Library No 970175; 11 April 1997 at 6 - 7, to the following effect:
"There was, therefore, a variance between the way in which the complaint was formulated and the evidence by way of the facts stated to the court and admitted by the appellant which was led in support of it. Under the Justices Act 1902 (WA), s46, that variance could have been cured by amendment made at the hearing. In the circumstances I think had the amendment then been sought, it would inevitably have been made. On appeal, under the Justices Act s199(1)(g), the appellate court may, in addition to making various orders specifically referred to, "make such other order as it thinks fit". In my view, that provision empowers me, if it should be just to do so, to make an order of amendment which it was in the power of the Court of Petty Sessions to make at first instance, by adding the reference to the particular of previous suspension with which the application was concerned: cf Carew v Carone (1991) 5 WAR 1 per Murray J at 2-3. I made the order for the reasons set out above."
28 I would therefore make the necessary amendment to the complaint by inserting the word "reasonable" before the words oral direction and by deleting the words in brackets. This therefore disposes of the first limb of the first ground of appeal, leaving open for determination the question of whether or not the prosecution had negatived the defence of extraordinary emergency raised by the appellant.
29 The learned Magistrate did misstate the test for conviction on a charge of reckless driving. His Worship was aware of the various authorities on the point, but seems to have taken the view that the test was an overall objective one. This is illustrated from the following passage in his Worship's reasons:
"Reckless driving, of course, has been looked at on many occasions, with regards to matters and, of course, there has been decisions as to questions of fact which have been decided as to what is reckless and what is dangerous.
All of these matters, of course, in themselves, have an objective test with regards to the driving, whether or not driving is in fact reckless."
30 In fact, it is clearly established that the offence of reckless driving has two requirements. The test as to whether a manner of driving is dangerous is objective, but the test as to whether dangerous driving is wilful is subjective. In Edmond v Taylor (1998) 27 MVR 158 Heenan J (at 161) put it this way:
"Comparison of the above definitions of reckless driving and dangerous driving shows that the main difference is the requirement of wilfulness in the former offence, making the state of mind of the driver a matter to be proved by the prosecution (per Commissioner O'Sullivan QC, as he was then, in Tate v Arnold (1993) 19 MVR 649 at 652).
Thus, for there to be reckless driving two requirements must be met. Not only must the manner of driving be dangerous but also the driver must proceed with that manner of driving wilfully - that is, being aware that the manner of driving is dangerous. The test as to whether a manner of driving is dangerous is objective. The test as to whether dangerous driving is wilful is subjective. As Murray J said in Attree v Randell (1993) 19 MVR 95 at 100, the crucial question is whether the driver 'adverted to the consequences of or the quality of the driving as being inherently dangerous or dangerous to the public or to any person and did he, so adverting to that, nonetheless recklessly proceed indifferent to those consequences or the quality of the driving in question".
31 In R (a child) v Gwynne (1999) 28 MVR 441 I referred to the authorities and added at 445:
"It is true that an inference can, in an appropriate case, be drawn that a person must have adverted to the consequences of or the quality of his driving as being inherently dangerous or dangerous to the public or any person, and/or that in so adverting to those consequences, he nonetheless recklessly proceeded indifferently to the consequences or the quality of his driving."
32 Counsel for the appellant submits that there was no evidence that the appellant adverted to the consequences of the quality of her driving as being inherently dangerous or dangerous to the public or to any person, nor that adverting to this she recklessly proceeded indifferently to those consequences or the quality of the driving in question. It was also put that no inference could be drawn beyond reasonable doubt as the only inference open is that, given the circumstances of the offence, she must have adverted to the consequences of the quality of her driving in this way. It was argued that her evidence revealed that she drove in the manner she did because she was "anxious" and knew that she had to get home "to do what (she) had to do to make the property safe".
33 Further, it was pointed out that the appellant, when she gave evidence, said that the first police officer had stepped to the side of the roadway which left a gap between the police vehicle and the side of the road through which she drove. As to the second officer, she stated that she was travelling at only 20 - 25 kph and he had turned to face her and as she went past him, he banged his hand on the front of the bonnet. Although travelling on the incorrect side of the roadway at the initial roadblock, she said she had done this because she was anxious to get home. When cross-examined, the appellant said she did not recall the first police officer standing in front of her vehicle, nor did she recall her mirror hitting him. In relation to the second officer, she conceded that he had held up his hand for her to stop and it was close enough to bang on the bonnet of her vehicle. It was put to her that he had to get out of the way, but she did not answer that question directly.
34 The learned Magistrate appears to have accepted the evidence of the police officers. In particular, his Worship accepted that the appellant's actions caused the first officer to move aside and, in so doing, caused him to be struck by the rear vision mirror. Further, his Worship accepted the evidence of the second officer that he was standing in the middle of the roadway and had to avoid being hit by the appellant's vehicle when she failed to comply with his signal to stop.
35 There is no doubt that when viewed objectively the appellant's driving was dangerous. In A M Smith v R [1976] WAR 97, Jackson CJ pointed out (at 104) that the question is whether the acts of the driver constituted a danger, real or potential, to the public and the standard is an objective one "impersonal and universal, fixed in relation to the safety of other users of the highway". His Honour added (at 105) that "the test is an objective one, so that juries are invited to place themselves, in their mind's eye, at the scene of the accident, and to say whether the manner of driving was a dangerous piece of driving". Reference was made to the passage in McBride v R [1966] HCA 22; (1966) 115 CLR 44 at 49 - 50 where Barwick CJ pointed out that it is the potentiality in fact of danger to the public and the manner of driving, whether that is realised by the accused or not, which may make it dangerous to the public within the meaning of the relevant section. Applying these principles, the appellant's manner of driving in striking one police officer and almost striking another was clearly an act of dangerous driving.
36 I am also of the view that the appellant's driving was reckless. That is, the dangerous driving was wilful. In my view, the only inference which can be drawn, and it can be drawn beyond reasonable doubt, is that the appellant in this case must have adverted to the consequences of or the quality of her driving as being inherently dangerous or dangerous to the public or any person and in so adverting to those consequences, she nonetheless recklessly proceeded indifferently to the consequences of the quality of her driving. Although it was argued that on all the evidence the appellant was anxious and concerned about the welfare of her property, it seems to me that the evidence clearly establishes that she must have determined to deliberately ignore the directions given her by each of the two police officers who attempted to halt her progress. Not only did she ignore those directions given, but she deliberately drove off in a manner which was calculated to create danger to the two police officers. The learned Magistrate accepted the testimony of the first officer that he had to jump out of the way and was struck by the rear vision mirror and the testimony of the second officer that he had to jump out of the way to avoid being hit. This the appellant could not have failed to observe, notwithstanding her evidence on the subject.
37 The evidence points unequivocally to a situation in which the appellant adverted to the consequences of the quality of her driving as being inherently dangerous or dangerous to the public or any person and in so adverting to it, nonetheless recklessly proceeded indifferent to those consequences or the quality of her driving. She was fixed on getting home and was not going to be prevented from doing so by any police officer who attempted to stop her, either by standing in front of a vehicle or otherwise. That, in my view, was a classic case of reckless driving and although the learned Magistrate wrongly formulated the test in relation to the offence, there was ample evidence upon which he could have concluded as he did that the appellant's driving was reckless.
38 The appellant relied upon the provisions of s 25 of the Criminal Code in order to escape criminal responsibility for her actions. Section 25 of the Criminal Code is in the following terms:
"25 Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise."
39 The section is in the same terms as s 25 of the Criminal Code of Queensland. In a note to the section in the Draft Criminal Code of Queensland presented by Sir Samuel Griffith, then Chief Justice of Queensland, to the Attorney General of Queensland on 29 October 1897, Sir Samuel stated:
"This section gives effect to the principle that no man is expected (for the purposes of the criminal law, at all events) to be wiser or better than all mankind. It is conceived that it is a rule of the common law, as it undoubtedly is a rule upon which any jury would desire to act. It may, perhaps, be said that it sums up nearly all the common law rules as to excuses for an act which is prima facie criminal."
40 The provision relating to extraordinary emergencies seems therefore to reflect the common law defence of necessity. It does not include compulsion, which is the subject of s 31 of the Criminal Code. That section which relieves a person of criminal responsibility for an act or omission if he does or omits to do the act under circumstances where he does or omits to do it in order to save himself from immediate death or grievous bodily harm threatened to be inflicted upon him by some person actually present and in a position to execute the threats, and believing himself to be unable otherwise to escape the carrying of the threats into execution.
41 The common law defence of necessity was considered by the Full Court of the Supreme Court of Victoria in R v Loughnan [1981] VicRp 43; [1981] VR 443 and the headnote to the report accurately reflects the joint judgment of Young CJ and King J in the following terms:
"... the defence of necessity involves the following elements:-
(i) the criminal act must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect;
(ii) the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril;
(iii) the acts done to avoid the peril must not be out of proportion to the peril to be avoided."
It will be observed that their Honours considered the defence of necessity to relate only to circumstances in which either the accused or others were themselves in peril.
42 In R v Rogers (1996) 86 A Crim R 542, Gleeson CJ (at 545) made these observations in relation to the concept of necessity in the criminal law:
"An instructive analysis of the 'ill-defined and elusive concept' of necessity is to be found in the judgment of Dickson J, in the Supreme Court of Canada, in Perka (1984) 14 CCC (3d) 385.
Using the term 'defence' without any implications as to onus of proof, his Lordship pointed out (at 399) that it has been universally recognised that, if the defence of necessity is to have a place in the criminal law, it must be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale. Nothing could better illustrate that proposition than the invoking of necessity as an answer to a charge of escaping, or attempting to escape, from prison. By the standards of most people, prisons are hazardous places. Many of their inmates are dangerous criminals. Grievances, real or imagined, often result in violent retribution. Rumours, suspicion and resentment flourish. The authorities endeavour to minimise risks, but it is acknowledged that nobody's safety can be absolutely guaranteed. People undergoing punishment are compelled by law to live in those circumstances, and the law reinforces that compulsion by making it an offence to escape from lawful custody. In what circumstances, then, does the law permit a person who escapes from lawful custody to excuse his or her conduct by saying: 'I feared for my safety?'
Dickson J said (at 398) that the idea behind the defence of necessity was that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or altruism, overwhelmingly impel disobedience. In Moore v Hussey (1609) Hobart 93 at 96; [1792] EngR 1613; 80 ER 243 at 245, Hobart CJ said that all laws admit certain cases of just excuse , when they are offended in the letter, and when the offender is under necessity. However, the writings on the subject all observe the extreme caution with which the concept has been regarded.
As with self-defence, considerations of reasonableness and proportionality are essential control mechanisms."
The concepts of reasonableness and proportionality are clearly incorporated within the provisions of s 25 of the Criminal Code.
43 The appellant's case was that there was a sudden or extraordinary emergency which had arisen on the day in question. That was the imminence of the bush fire raging near the appellant's property in Alexander Drive. The emergency was said to be heightened by the fact that there was a very substantial amount of diesel fuel which had recently been brought onto the property and which was clearly at risk of being set alight by the bushfire if it reached the property. It was argued that an ordinary person possessing the ordinary power of self control could not reasonably be expected otherwise than to act as the appellant did in driving past the two police officers in the manner in which I have described.
44 The appellant did not, however, say in her testimony that she regarded the situation as one of sudden or extraordinary emergency. Nor did she say that she was unable to do otherwise than drive past the police officers as she did. Her evidence was that she was "very anxious" and she said "I had to get home. I had to get home to ... save my property. To put the water on and make it safe. That was all that was on my mind at the time".
45 The learned Magistrate accepted that the "defence" was applicable to the offence of reckless driving. It certainly was, as is clear from R v Conway [1988] EWCA Crim 1; [1989] QB 290 where the defence of necessity at common law was considered to be available in such circumstances. As I have previously indicated, however, the learned Magistrate did not consider that the defence could apply to an extraordinary emergency which related to property rather than physical harm or injury to another human being. This conclusion is challenged by the appellant who relies upon the decision of Owen J in Dudley v Ballantyne [1998] WASCA 198; (1998) 28 MVR 209 where his Honour reached (at 213) this view:
"There is no definition within the Code as to what amounts to an emergency for the purposes of s 25. Counsel for the appellant relied on a definition given in Words and Phrases Legally Defined, Butterworths, Second Ed Counsel submitted that an emergency would arise where 'a person has reasonable cause to believe that circumstances exist which are likely to endanger life or property'. Though this particular definition of 'emergency' related to another piece of legislation, it appears to me to be an acceptable definition capable of application to s 25 of the Code."
Owen J was dealing with a situation in which a defendant was found to have reasonable cause to believe that circumstances existed which were likely to endanger both life and property. The property was the defendant's motor vehicle.
46 Although not referred to by Owen J in Dudley v Ballantyne, the question had been the subject of consideration by the Full Court in McHenry v Stewart, unreported; FCt SCt of WA; Library No 1918; 14 December 1976. There, Jackson CJ appears to have considered that a sudden and extraordinary emergency can relate to circumstances likely to endanger property. There, the defendant had driven a motor vehicle with a percentage of alcohol in his blood exceeding 0.08 per cent but contended that he had done so under circumstances of sudden or extraordinary emergency because he had received a telephone message that horses from his property were running loose on the Great Eastern Highway. He contended that his immediate concern was to get the horses off the highway as they were a danger to people driving on the highway, as well as being endangered themselves. Jackson CJ (at 3) said:
"I do not find it necessary, in considering this appeal, to discuss the meaning and application of s 25 of the Criminal Code to offences or circumstances other than those now before us. The language of the section, so far as the circumstances of this case are concerned, do not appear to me to raise any difficult questions of interpretation or construction. It was a question of fact whether the act done by the appellant, namely the driving of his motor vehicle from Redcliffe to Bellevue while affected by alcohol, was done under circumstances of sudden or extraordinary emergency. The learned Magistrate found that there was an emergency, but doubted whether it could be described as sudden or extraordinary. For myself, I should not have thought it was 'extraordinary' as the appellant's horses had escaped before, and no special precautions seem to have been taken to avoid their escaping again. The emergency might perhaps be regarded as 'sudden' in the sense that the news came suddenly to the appellant; but viewed objectively, it may not fairly be described as 'sudden'. Like the Magistrate, I would leave this question open. It was a further question of fact whether the circumstances of emergency were such that an ordinary person could not be expected to act otherwise than the appellant did, assuming he possessed the ordinary power of self control. If this question of fact were answered favourably to the appellant, or if the Magistrate had a reasonable doubt about it, then the appellant was entitled to have the charge dismissed. But his Worship's finding was a positive one against the appellant on this issue. I am not persuaded that he applied any incorrect test, or that he failed to appreciate that the onus of negativing the application of s 25 to the facts of the case rested on the prosecution."
47 Counsel for the appellant argued that the provisions of s 25 of the Criminal Code should be given a broad interpretation and one favourable to an accused person. A sudden or extraordinary emergency should therefore apply to a situation in which property is in danger. I agree with the general submission that such an interpretation should be given to the provision and I am prepared to accept that the decision of the Full Court in McHenry v Stewart implicitly accepts that a sudden or extraordinary emergency may apply in circumstances in which there is danger to the property of the defendant. Of course, Owen J has held similarly in Dudley v Ballantyne.
48 To the extent therefore that the learned Magistrate considered the defence inapplicable because the appellant was considered only with potential damage to her property, he was, in my view, in error. That is, however, not the end of the matter. The question is whether there was a sudden or extraordinary emergency and also whether an ordinary person possessing the ordinary power of self-control could not be expected to act otherwise than the appellant did. In this respect, the judgment in McHenry v Stewart is instructive.
49 I do not consider that there is any evidence that there was a sudden emergency which faced the appellant. The evidence was that she had been home during the day during which time the bushfire was approaching, but she had left home to collect her daughter later in the afternoon and was in the process of returning to her home when stopped at the roadblock. The bushfire situation could not, on any view of it, be categorised as a sudden emergency. Nor in my view could it be categorised as an extraordinary emergency. The fire was a few kilometres away and although it looked to be heading towards the appellant's property, police clearly had the matter in hand because of the roadblocks which had been established, and there was evidence that Fire Brigade vehicles were being let through the roadblock to attend to the problem. Whatever emergency there was, it was clearly under the control of the relevant authorities.
50 Further, and in any event, I cannot accept that what the appellant did was something that an ordinary person possessing the ordinary power of self-control could not be expected otherwise than to do. There were clearly other options open to the appellant. They included being escorted to her property by the police. This is in fact what happened when the appellant's husband arrived at a roadblock at Gnangara Road and Coverwood Promenade. The Fire Brigade arrived very shortly afterwards. There were therefore other courses open to the appellant than to take the serious risk of driving past police roadblocks towards her property.
51 Although the onus was clearly on the prosecution to negative the proposition that what the appellant did was an act under circumstances of sudden or extraordinary emergency, such that an ordinary person possessing the ordinary power of self-control could not reasonably be expected to act otherwise, it was clearly open to the learned Magistrate to properly conclude that the threat to the appellant's property was not such as to constitute either a sudden or extraordinary emergency and her behaviour in driving past the roadblock was not such that an ordinary person possessing the ordinary power of self-control could not reasonably be expected to do otherwise.
52 It follows that in my view the "defence" of sudden or extraordinary emergency was not open to the appellant and insofar as it was raised, it was negatived beyond reasonable doubt by the prosecution. This being so, all charges were properly proven, including that of failing to stop when called upon by a member of the Police Force to do so, the only defence to which was that raised in relation to sudden or extraordinary emergency.
53 For these reasons I would dismiss the appellant's appeal.
# Dunjey
Cross \[2002\] WASCA 14
(1993) 19 MVR 95
(1999) 28 MVR 441
(1998) 28 MVR 209
(1983) 34 SASR 292
(1993) 19 MVR 75
(1991) 4 WAR 21
(1991) 5 WAR 1
(1998) 27 MVR 158
(1993) 19 MVR 649
(1966) 115 CLR 44