Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Dangerous driving involving death - Miscarriage of justice - Sufficiency of evidence - Reasonable foreseeability of deceased pulling out in front of the appellant's car

Criminal law - Appeal against conviction - Dangerous driving involving death - Whether magistrate failed to properly warn himself about the failure of the prosecution to call certain evidence - Whether magistrate failed to properly direct himself about the police's failure to permit appellant to examine the deceased's car

Criminal law - Appeal against conviction - Dangerous driving involving death - Defences - Accident - Mistake of fact

Criminal law - Appeal against sentence - Dangerous driving involving death - Manifest excess - Failure to suspend sentence

Criminal Appeals Act 2004 (WA), s 8, s 30

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

Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285

Hayes v The Queen (1973) 47 ALJR 603

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

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kaighin v The Queen (1990) 1 WAR 390

Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209

Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44

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

R v Coventry [1938] HCA 31; (1938) 59 CLR 633

R v Falconer [1990] HCA 49; (1990) 171 CLR 30

R v Hillier [2007] HCA 13; (2007) 228 CLR 618

Taylor v The State of Western Australia [2009] WASCA 226

The State of Western Australia v Gibbs [2009] WASCA 7

1 JENKINS J: On 14 November 2008, the appellant, Alistair Lee De Vere Hunt, was the driver of a car which was involved in an incident with a car being driven by David Jack Galestine. Tragically, Mr Galestine died as a result of the injuries he received. Mr Hunt was charged with being involved in the accident which occasioned Mr Galestine's death and, at the time of it, driving in a manner that was dangerous. After a trial in the Perth Magistrates Court, Mr Hunt was convicted of the charge and sentenced to 18 months' imprisonment. He appeals against his conviction and sentence.

2 The prosecution notice alleged that on 14 November 2008 at Como Mr Hunt:

[D]rove a motor vehicle registered number 369-LG on a road, namely South Terrace and was involved in an incident occasioning the death of David Jack Galestine and at the time of the incident, drove in a manner that was having regard to all the circumstances, dangerous to the public or to any person.

3 The offence is contrary to the Road Traffic Act 1974 (WA) s 59(1)(b), which, relevantly, states:

(1) If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of ... another person and the driver was, at the time of the incident, driving the motor vehicle -

...

(b) 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 a crime and is liable to the penalty in subsection (3).

4 The maximum summary conviction penalty for the offence is imprisonment for 3 years or a fine of 720 penalty units. It carries a mandatory motor driver's licence disqualification period of not less than two years. On indictment, a person convicted of the offence in circumstances where the offender has caused the death of another person is liable to a fine of any amount and to imprisonment for 10 years.

5 Mr Hunt stood trial in the Magistrates Court at Perth on 22 March 2010. At the conclusion of the trial, which took a number of days, the magistrate reserved his decision. On 27 April 2010, the magistrate delivered his oral reasons for convicting Mr Hunt of the charge. Sentencing was then adjourned to 27 May 2010. On that date, the magistrate sentenced Mr Hunt to 18 months' imprisonment and made him eligible for parole. He suspended Mr Hunt's motor driver's licence for a period of two years. On 31 May 2010 Mr Hunt was granted bail pending the outcome of his appeal.

6 On 1 July 2010 I granted leave to appeal on the following grounds of appeal against conviction:

1. The totality of the evidence was incapable of supporting a finding beyond reasonable doubt that [Mr Hunt] was travelling at a speed constituting dangerous driving at the relevant time of the incident in the circumstances.
2. The Magistrate erred in not warning himself that it would be dangerous to convict [Mr Hunt] on the evidence given the release and destruction of the Hyundai Getz motor vehicle driven by [Mr Galestine] at the time of the accident by police and the failure of the prosecution to carry out any forensic testing on the vehicle (given inter alia that the expert evidence was that speed can be estimated from impact damage) and that he could not convict [Mr Hunt] unless he scrutinised the evidence with great care and attention and was satisfied beyond reasonable doubt as to the veracity, accuracy and truthfulness of the evidence of speed of the vehicle at the relevant time prior to impact bearing in mind this warning.
3. The Magistrate was wrong in considering only the deprivation of the opportunity of [Mr Hunt] to carry out forensic testing on [Mr Galestine's] vehicle and not considering the failure of the prosecution to do so when deciding whether the case was proved beyond reasonable doubt especially in relation to the weight to be given to circumstantial evidence and the drawing of adverse inferences from the evidence.
4. The Magistrate placed no or insufficient weight on the failure of the prosecution to call witnesses, including a taxi driver who was in the vicinity and [name omitted], a 29 year old nurse who, according to her statement, was in a serious relationship for two years with [Mr Galestine], believing him to be divorced and whose residence he was leaving at about 10.30pm on the night in question.
5. The Magistrate was wrong in not accepting the evidence of the defence expert witness.
6. His Honour erred in not considering the defence of accident pursuant to section 23B of the criminal code.
7. Alternatively to ground 6, His Honour erred in not finding that the collision itself and/or the death of [Mr Galestine] were events which occurred by accident on the basis that [Mr Hunt] did not foresee and could not reasonably have foreseen that [Mr Galestine] would move his motor vehicle, in circumstances when the court found it was dangerous to do so, from the laneway on the south of South Terrace from number 79 onto the westbound carriageway of South Terrace into the path of [Mr Hunt] who was travelling west on South Terrace when [Mr Galestine] had the duty to give way to [Mr Hunt] and was a significant cause of the accident.
8. His Honour erred in not considering or finding reasonable doubt about whether [Mr Hunt] had an honest and reasonable but mistaken belief that someone in the position of [Mr Galestine] would not move his motor vehicle into the path of westbound traffic as he did without giving way in the circumstances of this case.
9. His honour erred in not finding there was doubt about the point on South Terrace that [Mr Hunt] was referring to when he told first class constable Michael Anthony Ward at the scene that he was travelling at 'about 80' given the evidence of [Mr Hunt] and Mr Ward.
10. His Honour erred in not finding that it was more probable than not that the collision and/or the death of [Mr Galestine] was solely attributable to his own driving in failing to give way to [Mr Hunt] and was in no way attributable to the driving of [Mr Hunt] (dangerous or not).
11. His Honour erred in finding that the only reasonable inference he could draw was that [Mr Hunt] was driving at a speed which was 'excessive and greatly in excess of the speed limit' at the time of the incident in all the circumstances of the case.
12. His Honour erred in not making a more precise finding of the speed of [Mr Hunt's] vehicle at the relevant time of the incident.
13. If the effect of His Honour's decision was that [Mr Hunt] was driving at about 80kph at the time of the incident then His Honour erred in finding that this was dangerous in the circumstances of the case.
14. His Honour erred in finding that it was reasonably foreseeable to [Mr Hunt] that the Hyundai Getz would pull out in front of [Mr Hunt] in the light of His Honour's findings that the Getz was obliged to give way to [Mr Hunt's] of the accident, there was no doubt that [Mr Galestine] contributed in no small part to the collision and to his own death and that the court could not be satisfied that [Mr Galestine] had looked at all and did not simply pull out in front of [Mr Hunt] when [Mr Hunt] was very close and without a great deal of notice at 10.30pm when [Mr Hunt's] vehicle was the only vehicle travelling on that road in the relevant area at all relevant times.

7 I also granted leave to appeal against sentence on the following grounds:

1. His Honour erred in giving insufficient weight to the personal circumstances and antecedents of [Mr Hunt];
2. His Honour erred in giving insufficient weight to the complicity of and the contribution to the causing of the collision between [Mr Galestine's] vehicle and [Mr Hunt's] vehicle by the conduct of [Mr Galestine] and placed excessive weight on the contribution of [Mr Hunt's] conduct to the occurrence of the collision;
3. His Honour erred in giving excessive weight to the speed of [Mr Hunt's] vehicle at the time of the collision and at the time prior to the collision when [Mr Hunt's] vehicle was observed by other witnesses, and thereby erred in his assessment of the level of seriousness of [Mr Hunt's] driving in the circumstances;
4. His Honour placed the offending conduct too high in the continuum between low and high referred to in Eves v WA [2008] WASCA 7;
5. As a result of the errors identified in Grounds 1 - 4, or one or more of them, His Honour erred in imposing a sentence which was excessive;
6. Further, as a result of the errors identified in Grounds 1 - 4, or one or more of them, His Honour erred in not suspending the sentence; and
7. In the alternative to grounds 5 and 6, His Honour erred in imposing a sentence which was manifestly excessive.

8 The evidence disclosed that at about 10.30 pm on 14 November 2008 Mr Hunt drove a Ford Falcon sedan in a westerly direction on South Terrace, Como. Mr Hunt, who was aged 19 at the time, had five friends as passengers in the car. Another friend was in the boot of the Ford because there was insufficient room inside the car for him. As the car travelled past the South Perth Community Centre Hospital (the Hospital), and was about 50 m east of the intersection with Coode Street, Mr Galestine drove his Hyundai Getz sedan out of the driveway of 79 South Terrace, which is on the southern side of South Terrace. Mr Galestine travelled across the westbound carriageway and was apparently intending to turn right into South Terrace and travel in an easterly direction. Mr Hunt's car collided with Mr Galestine's car in about the middle of the westbound carriageway of South Terrace and to the north of the driveway to 79 South Terrace. The right-hand front of the Ford hit the driver's side A-pillar of the Getz in an almost 'T-bone' collision (the incident).

9 Near the point of impact, South Terrace is a dual carriage way but the median strip between the two directions of traffic is simply a strip of road 1.6 m wide bounded by white lines. Each traffic lane is 3.6 m wide. On the northern side of South Terrace, just west of the driveway to 79 South Terrace, is a side street, Fortune Street. It meets South Terrace at a T-intersection. There is a break in the median strip at the intersection. The speed limit on South Terrace is 60 km per hour.

10 On the southern side of South Terrace there is a parking lane which is bounded by concrete nibs at either end. It runs approximately 80 m to the east of the driveway to 79 South Terrace and approximately 25 m to the west of the driveway. It is paved in reddish coloured bitumen and is 2.2 m wide. At the time of the incident there was a large white sedan parked in this lane directly to the east of the driveway. To the east of the parked car is another driveway. Immediately to the east of that other driveway is a parking bay and there was another sedan parked in that bay. Along that portion of South Terrace there are driveways leading from blocks of flats and other residences on the south side of South Terrace onto South Terrace. These driveways occur at different intervals of between 5 and 20 m. There are also verge trees 50 m to the east of the driveway to number 79 and a diamond shaped road sign on the verge adjacent to the sedan parked next to the driveway from which Mr Galestine drove.

11 Mr Hunt's Ford came to rest approximately in the middle of the beginning of Fortune Street, pointing south. Its rear end was slightly south of, but very close to the intersection of Fortune Street and South Terrace. Mr Galestine's car came to rest southwest of the Ford at about a 45 degree angle to the rear passenger corner of it. It was facing the house which is on the northwest corner of South Terrace and Fortune Street.

12 The road surface was dry and good and the weather was fine and clear. The road was sufficiently lit. It was accepted that the Ford and the Getz had their headlights on.

13 The prosecutor relied solely on speed at or immediately before the incident in order to prove that Mr Hunt's driving was dangerous. Although Mr Hunt had a blood alcohol reading at the time of over 0.05%, excessive alcohol intake was not relied on by the prosecution. The prosecution relied on the evidence of witnesses who had witnessed Mr Hunt's car shortly prior to the incident to prove, by inference, the speed of the vehicle at the time of the incident.

14 The prosecution called four witnesses who said that they observed Mr Hunt's vehicle travel west, past them on South Terrace. Three of the witnesses, Sean Andrew Brereton, James William McDonald and Luke John Conroy, lived in a unit on the south side of South Terrace about 550 m west of Canning Highway and 155 m east of the impact point. The fourth witness, Simon Andrew John Hewson, was sitting on a park bench approximately 150 m east of the impact of the two cars.

15 The prosecution also relied on the evidence of Constable Ward who said that at the scene, Mr Hunt admitted to him that he was travelling at 'about 80'.

16 Mr Hewson was 40 years of age and a geotechnical engineer. He had a Bachelor of Science degree in geology and a doctorate in structural geology.

17 On the evening of 14 November 2008, Mr Hewson was sitting on a park bench in a park on the north side of South Terrace, near the Hospital. He heard Mr Hunt's car before he saw it. He heard road noise from the tyres, wind noise and the sound of the engine 'under load'. The park bench faced a north-easterly direction. Mr Hewson appreciated that the car was coming from the Canning Highway, or the easterly, end of South Terrace and was travelling in a westerly direction. When he said that the car was 'under load' he meant that the engine was at 'higher revs' than he would normally expect an engine to be. He said he had heard a number of cars go down South Terrace and the revs were higher than he would normally hear on a car. He said that the wheel noise was such that it signified to him that the car was going 'fairly fast'.

18 Mr Hewson said that he turned and saw a white Falcon come into his field of view. Mr Hewson said that almost as soon as he heard the car, it came into view. He noticed that it was going very fast (ts 22/3/10, page 20) and it started to accelerate as it was in his view. He said that he heard a 'definite kick-down of the gearbox'. He said that he had driven a number of cars like that vehicle. He noticed that the back of the car 'dipped down'. He said that his experience told him that that is what happened when you put a car like that under hard load. He said that he had been driving for approximately 22 years at that time.

19 Mr Hewson lost sight of the vehicle as it drove past his line of vision, which was obscured to the west by foliage and fences. He had also been unable to see the car when it passed behind the trunks of two large trees which were south-east of the park bench.

20 He gave a rough estimate that he had seen the car for 2 - 3 seconds. He estimated that the car was doing 100 km per hour. Mr Hewson said fairly soon after the car left his vision, he heard the sound of the incident. He then jumped up and ran over to South Terrace. Mr Hewson said that as the car went out of sight, he had heard the engine 'back off from load'. That is, it ceased to be under the same amount of acceleration.

21 In cross-examination, Mr Hewson estimated that the park bench was approximately 20 m from the north edge of South Terrace (ts 22/3/10, page 29). He said that for the 20 minutes that he was sitting on the park bench he was looking across the oval which would have been in a north or north-easterly direction as well as looking at South Terrace in a south or south-easterly direction (ts 22/3/10, page 32). He estimated that it was 150 m - 200 m from where he lost sight of the Falcon to the incident site. Subsequent measurement showed that it was about 150 m from the point on South Terrace closest to the bench to the incident site and about 125 m from the most western point on South Terrace that a person sitting on the bench could see to the incident site.

22 Mr Hewson said that it was 'about a second' after he lost sight of the vehicle that he heard the crash. He then acknowledged that as a vehicle travelling at 100 km per hour travels only about 27.7 metres a second, it could not have been 'about a second' before he heard the incident. If Mr Hunt's car was travelling at about 100 km per hour there would have been about four and a half seconds between when Mr Hewson last saw the car until he heard the crash. The alternative is that Mr Hewson underestimated the speed of the Ford. However, it would have been physically impossible for Mr Hunt to be travelling so fast that his car covered 125 m in one second.

23 Mr Hewson acknowledged that the sound he heard after the vehicle left his sight was consistent with Mr Hunt ceasing acceleration and was possibly consistent with a slowing of the vehicle. Mr Hewson agreed that the noise the tyres made would depend on the sort of tyres the car had fitted (ts 22/3/10, page 36). Mr Hewson said that when an engine kicked down it was usually under 'fairly heavy' acceleration.

24 Mr Brereton was 33 years of age. He lived in a unit on the corner of Hazel Street and South Terrace. The lounge room is on the ground floor and looks straight out in a northerly direction on to South Terrace. It has a glass sliding door that faces out on to South Terrace. At the front of the property there was a 5-foot high brick wall, but there was a gap in the wall with metal railings in it. From the lounge room window, Mr Brereton could see on to South Terrace through the lounge room sliding door and through the metal railings in the fence.

25 Mr Brereton said that he and his friends were watching the cricket on TV in their lounge room but he could hear every vehicle which went past their unit. He said that he heard Mr Hunt's car travelling along South Terrace from Canning Highway. It was going 'fairly quickly'. It sounded like it was speeding up but he thought that maybe that was because it was getting closer to him. He said that it was common for him and his friends to hear cars approaching along South Terrace and to look out their lounge room door to see them go past. He did that on this occasion and the car went past as a white flash. It was going too fast to enable him to see the make of the vehicle. He said that the car was travelling a lot quicker than and in his opinion, twice as fast as the speed 'normal cars would go past'. He said that something was said between he and his friends about the speed of the car, he looked back at the cricket and a second later he heard a bang. He and his friends then ran to the scene of the incident.

26 Mr Brereton said that he did not believe that the car had been travelling at 70 km per hour because he would have been able to recognise the car at that speed. He thought that it was less than six seconds between when he saw the car and when he heard the crash.

27 Mr Brereton was not asked about his driving experience.

28 Mr McDonald was 26 years of age and was a housemate of Mr Brereton. He confirmed that on 14 November 2008 he was at home watching the cricket with Mr Brereton and Mr Conroy. He had had about four or five full strength beers that evening. He also confirmed that the sliding glass door of the lounge room was open. Whilst he was standing outside between the unit and the fence which bordered on to South Terrace, having a cigarette, he heard a car coming from the east. He heard the sound of a car accelerating; it was very loud. As the car went past the unit, he noticed that it was white, but he was unable to make out the model of the vehicle because it was moving 'too quick'. He said he had been driving for approximately seven or eight years. He thought that the car was going at least twice the speed limit. As the car went past he said to his housemates 'What the fuck was ... ?' He did not have time to finish the question before he heard a loud crash coming from an easterly direction on South Terrace. He estimated the time between the car passing the unit and the sound of the crash as no more than a couple of seconds.

29 Under cross-examination, Mr McDonald said that the other men at the unit were drinking as well. This was contrary to the evidence of Mr Brereton who said that he had not been drinking alcohol that evening and Mr Conroy who did not believe he had had anything to drink.

30 Mr McDonald estimated the opening in the brick fence through which he could see Mr Hunt's vehicle to be a metre and a half wide. He said that prior to hearing the collision he did not hear the sound of the Ford's engine change in any way. He said that as the car approached the unit 'it kept accelerating, so the noise was getting obviously loud'. He said that as it went past it may have become softer from going further away 'but it didn't decrease' (ts 22/3/10, page 68). He agreed that he had the car in his vision for about a tenth of a second. It was put to him that he could not judge the speed of a car given the opportunity that he had to observe it. He responded that he could not give the exact speed, but he would be able to say whether the speed was the speed at which cars usually travelled or whether it was going a lot faster. He said that he had seen a lot of cars going past in that gap in the fence. Mr McDonald thought that there were two or three seconds from when the car had gone past the unit to when he heard the crash and his best estimate was three seconds. However, he said he could not be exact. He did not think it would have been six or seven seconds.

31 Mr Conroy was 22 years of age and a driller's offsider. On 14 November 2008, he was living in the unit with Mr Brereton and Mr McDonald. He confirmed that they were watching a game of cricket. He could not recollect if he had had any alcohol to drink that evening.

32 Mr Conroy recalled sitting in the lounge room and hearing a car accelerating down South Terrace from the east. He heard Mr McDonald say something, he turned towards the road and saw a car flash past. He then heard the noise of the incident. He could not say what colour the car was. He said 'I just seen a light go past, it was just that quick' (ts 22/3/10, page 78). Mr Conroy recalled that when he spoke to people afterwards and they asked how fast he thought the car was going he told them that he thought that it was about 140 km per hour. He thought that it was going double the speed of what he had seen other cars go past.

33 Under cross-examination, Mr Conroy said that he did not think he had had any alcohol prior to the crash as he and his friends were on a fitness campaign. However, he said after the incident they had decided that they needed a drink. He said that at the most he would have had a couple of drinks. He was not cross-examined about what sort of drinks they would have been.

34 Mr Conroy said that he thought that the opening in the brick fence through which he could see South Terrace was a few metres wide. He said that it took a split second for the lights of the car to go past his vision and it was only a few seconds after that that he heard the crash.

35 Mr Elsing was 39 years of age and a project manager. He lived in a unit on the top floor of the block of units at 79 South Terrace. He said on 14 November 2008 he was in his son's bedroom which faced directly on to South Terrace. He heard a vehicle accelerating 'to a high rate of speed' (ts 22/3/10, page 89). He then heard a deafening crash. He looked out the window and saw the Ford pushing Mr Galestine's Getz in a sideways direction towards Coode Street. He said that he had met Mr Galestine on a number of occasions in his block of flats. He said that the Ford vehicle had 'T-boned' Mr Galestine's vehicle. Mr Elsing said that the larger car was 'coming in a bit of a sort of a curve motion, heading towards the road across the road' (ts 22/3/10, page 92).

36 Under cross-examination, Mr Elsing said that he knew that the driveway out of the block of flats was a dangerous spot to pull out from when there were cars parked along the south-eastern verge of South Terrace. That was because cars parked in that area could block a driver's vision of cars travelling west on South Terrace. He confirmed also that in that area, South Terrace narrowed because of the parking bays and an island in the middle of the road.

37 In re-examination, Mr Elsing said that he had been driving cars for 20 years and over that time he had driven at least a dozen cars. He said that he was familiar with different types and sized engines. Mr Elsing said that the sound he heard coming up from South Terrace would not have come from anything less than a 'V6'. He said he meant a high-powered performance vehicle. He confirmed that to mean a six-cylinder vehicle (ts 22/3/10, page 102).

38 Mr Dowling was 42 years of age and on the evening of 14 November 2008 he was working at the South Perth Hospital. He was driving an F250 truck and was waiting at the intersection of Coode Street and South Terrace at a red light. He was facing in an easterly direction. The lights turned green and Mr Dowling accelerated towards the hospital. He then saw a big cloud of dust or smoke about 30 m in front of him and two cars emerge from it (ts 22/3/10, page 105). He had not seen either vehicle before he saw the smoke. He said that at the lights there had been a taxi alongside him. As he stopped in front of Mr Galestine's Getz, the taxi pulled alongside him and then drove off.

39 Under cross-examination, he said that he could not recall the name of the taxi company. He did not notice whether the Getz had its indicator light on. He did not recall hearing any noise such as loud acceleration, from either of the vehicles.

40 Constable Ward was called to attend the incident. He administered a roadside breath test to Mr Hunt and the result was positive. He then cautioned Mr Hunt and they had the following roadside interview:

1. When was your last drink?
2. 15 minutes ago.
3. What was the last drink and the amount of that drink?
4. I've had six beers since three o'clock.
5. Are you on any medication?
6. No.
7. How many passengers did you have in your car?
8. Five. Campbell was in the boot.
9. Who were the passengers?
10. Five in the car; one in the boot.

41 After Mr Hunt gave the names of his passengers, the interview continued:

1. What happened?
2. The other guy pulled out from my left. I hit the brakes and skidded and couldn't stop. I hit him pretty hard.
3. How fast were you travelling?
4. About 80.

42 Under cross-examination Constable Ward said that he and Mr Hunt were alone when they had the above conversation. He said that before the interview Mr Hunt had been advised that Mr Galestine had died and he [Mr Hunt] was upset.

43 Constable Hans attended the scene with Constable Ward. He noted that there were empty beer cans inside Mr Hunt's Ford. He administered a breath test to Mr Hunt at the Cannington Police Station later that night. The result was calculated back to the time of driving at being 0.077 g of alcohol per 100 ml of blood.

44 Constable Hans was the last witness called by the prosecution on 22 March 2010. On the morning of 23 March 2010 Mr Giudice, counsel for Mr Hunt, made a submission about a proposed prosecution witness, who I will refer to as Ms CC. Mr Giudice told the magistrate that Ms CC had been listed by the prosecution as a witness it intended to call and he had been served with her two page unsigned statement. Mr Giudice said that the previous day, the prosecutor had advised him that Ms CC had left Western Australia, travelled interstate and that she had not been served with a summons. Mr Giudice said that the defence had then contacted Ms CC through an internet social networking site. She telephoned Mr Giudice but told him that she did not want to be involved in the case because she had moved on and was grieving. Mr Giudice submitted that Ms CC's evidence was important and that she should be called. Mr Giudice submitted that if the prosecution declined to call her to give evidence then the magistrate should do so. His Honour put to Mr Giudice that if he wanted to call Ms CC then he could subpoena her for that purpose and Mr Giudice said that he was not going to do that.

45 The prosecutor told the magistrate that it was his fault that Mr Giudice had been advised at short notice that Ms CC was not available to give evidence. He said the matter slipped his mind due to other duties. He said that Ms CC had not made a statement but she had given some information to a police officer who had written it down. She had refused to sign the statement and had refused to tell the officer where she lived. The prosecutor told the magistrate that Mr Galestine had been with Ms CC in her unit at 79 South Terrace on the evening of 14 November 2008.

46 An exchange took place between the magistrate and the prosecutor the outcome of which was that it was established that the relevance of Ms CC's evidence was to prove, if it could, Mr Galestine's state of mind, and perhaps that he was upset for some reason, at the time he left her unit.

47 His Honour, in effect asked the prosecutor to attempt to locate Ms CC and see if she was prepared to give evidence. Mr Giudice did make any further submission and the matter was left on the basis that the prosecution would make further enquiries.

48 Constable Callaghan was the officer-in-charge of the investigation. He has several qualifications and a number of years experience in motor vehicle crash investigations. He took photographs at the scene both on the evening of the crash and in the day time. Some of the photographs taken from around the driveway of 79 South Terrace, looking in an easterly direction along South Terrace, show that when Mr Galestine exited the driveway there were a number of possible obstacles to him being able to see Mr Hunt's Ford. These included the high brick fence around the front boundary of 79 South Terrace, cars parked on the southern verge of South Terrace, the road sign on the southern verge and verge trees further east on South Terrace.

49 Constable Callaghan said there was a slight angle to the impact of the Ford and the Getz but basically the two vehicles were at right angles to one another at the time of impact. He noted that the collision damage to the Falcon, although across its front, was more prominent on the driver's side front, indicating that the Getz was turning right at the time of impact.

50 Under cross-examination, Constable Callaghan said that after the police concluded their inquiries involving the Getz it was released into the owner's custody, being the relevant insurance company.

51 Mr Hunt was charged in June 2009 and Constable Callaghan did not know where the Getz was at that time. He confirmed that Mr Giudice had written to him on 6 July 2009 asking for permission to inspect the Getz. He responded by advising Mr Giudice that the Getz was insured by a specified insurance company which took possession of it on 19 November 2008. Constable Callaghan directed inquiries to be made with the insurance company. On 9 October 2009 Constable Callaghan wrote to Mr Giudice and advised him that the Getz had been destroyed sometime earlier. Constable Callaghan did not know when that had occurred.

52 Whilst the Getz was in the police's possession, they did not profile the crush damage to it. Photographs were taken of both vehicles at the scene on 14 November 2008, which show the damage to them. Measurements were also taken of marks left on South Terrace by the cars. Subsequently a plan was drawn to scale of these marks and the positions of the vehicles when they came to rest. This plan was in evidence.

53 Constable Callaghan was also asked about the identity of the taxi driver who Mr Dowling had said was alongside him at the time of the incident. Constable Callaghan said that he was advised by Mr Dowling in about September 2009 of the presence of the taxi. He said that he had not subsequently made inquiries with the taxi company in order to identify the driver.

54 In re-examination Constable Callaghan said that it was not the police's practice to keep hold of vehicles involved in traffic accidents.

55 After Constable Callaghan was excused, the prosecutor advised the court that the prosecution had been unable to get hold of Ms CC. The prosecutor said they would continue to attempt to do so that evening (ts 23/3/10, page 60).

56 A vehicle examination report relating to both the Getz and the Ford was tendered by consent. In respect of the Getz, the examiner noted that the vehicle had sustained an impact to the right side. A lot of crash damage was noted, including that both front tyres were deflated due to crash damage. The vehicle appeared to have been in roadworthy condition prior to the incident.

57 The examination of the Ford showed that it had sustained an impact to the right front. The front bumper, stone tray, grille, engine bonnet, radiator panel, radiator, air conditioner condenser and all front lighting was bent, smashed, buckled and crushed rearwards. The right front mudguard, mudguard skirt, right front suspension, battery and fuse box was bent, buckled, smashed and crushed rearwards. The outer edge of the right front wheel rim was buckled and the wheel rim smashed. The front portion of the left front mudguard was scraped and had red and blue plastic-like scuff marks adhering to the damaged front portions. It was noted that this was consistent with having come from the logo on the driver's side of the Getz.

58 The examiner noted that there were no lock up/skid marks evident on the tyre tread surfaces. Portions of the brakes were inspected and found damaged from severe brake operation with a heavier concentration on the front rotors. The report concluded that the 'blueing' of the disc brake rotors indicated prolonged, sustained and heavy braking conditions. There were no defects detected that would have contributed to the incident.

59 Constable Magorian is a well qualified and experienced motor vehicle crash investigator. He has a masters degree in collision investigation from the University of Teesside in the United Kingdom. He also has a certificate in forensic road accident investigation from De Montfort University, also in the United Kingdom. He has been investigating serious motor vehicle accidents in Western Australia for approximately 13 years.

60 Constable Magorian did not attend the scene on 14 November 2008. However, he had access to photographs of the scene and the cars, to the measurements taken at the scene and witnesses statements in the prosecution brief. He was asked to prepare a report for the prosecution after it had received a report from the defence expert, Bohdan Generowicz.

61 In his report, Constable Magorian noted that the Ford had come to rest approximately 19 m from the point of collision and the Getz had come to rest approximately 21 m from the point of collision. Constable Magorian concluded that the damage to the Ford appeared more significant to the front driver's side. He noted that the leading edge of its bonnet and the bumper showed evidence of what appears to be red paint, consistent with the sign writing on the side of the Getz.

62 Constable Magorian noted that the Getz had sustained significant damage to the driver's side, primarily in the area of the driver's door. He said that the damage appeared to be more concentrated in the area of the lower, forward door area. He said that because he had not physically examined either vehicle, he was unable to determine the principal direction of force on each vehicle, other than to suggest that the impact was more angular than perpendicular. He said that the damage to the side of the Getz indicated a force both inward and, to some degree, rearward.

63 In Constable Magorian's opinion, the commencement of the single scrape mark, furtherest east on South Terrace, was indicative of the position on the roadway where the vehicles came into contact. He was not able to say which part of which vehicle was responsible for leaving the mark on the road surface. The further most east point of that scrape mark is about 1.5 m east of the north-east corner of the driveway of 79 South Terrace about one metre to the south of the southern edge of the median strip. It travels in a diagonal line into about the middle of the median strip. It is 5.3 m long. To the left of the scrape mark is the first tyre scuff, which, in Constable Magorian's view, is to have come from one of the rear wheels of the Getz, as it was pushed sideways. The tyre scuff commences approximately one and a half metres from the southern edge of the South Terrace carriage way and to the north of the north-east corner of the driveway. There are two lengthy tyre marks which are more or less parallel. Given the published wheelbase of the Getz, Constable Magorian believed that those marks were not inconsistent with having been made by the Getz as it moved sideways after impact. Constable Magorian said that the evidence at the scene was not inconsistent with the vehicles maintaining contact after collision and separating just before coming to rest.

64 Constable Magorian's report then analyses Mr Generowicz's report. The pertinent points made by Constable Magorian are as follows:

• He does not agree with Mr Generowicz's use of the tare weights of the Ford and the Getz. He regards them as being 'notoriously unreliable'.
• There was an opportunity for a driver leaving the driveway of 79 South Terrace to view portions of the westbound lane prior to his vehicle being placed over the border between the parking strip and the carriageway, which is the point at which Mr Generowicz said that such a driver would have a full view of the westbound lane. He said that this may have been more evident at night with the approach of headlights.
• The photographs taken at the time of the incident appear to show that all the marked parking bays on the southern side of the carriageway were occupied by vehicles although the scale of survey plan provided to him indicated that parked vehicles only occupied the first two bays east of the driveway.
• He does not necessarily agree with or disagree with Mr Generowicz proposition that the first contact between the two cars would have occurred approximately 1.5 m before the commencement of gouge marks on the road surface. Constable Magorian said it had not been his experience and he had seen no research or training literature to verify the use of that specified distance.
• There is no physical or witness evidence as to the movement of the Getz so it would be inappropriate to make a determination that it was travelling at a specific speed or angle of departure from the driveway at the moment of impact.
• An angle of departure from the driveway for the Getz of 30 degrees appears unlikely and would be inconsistent with the post-impact movement of the vehicles.
• It would be extremely difficult to determine a crush depth of the order of 55 - 60 cm by the Ford into the side of the Getz from photographs. To enable any calculation to be performed in relation to determining vehicle speeds, the full crush profile of both vehicles would have to have been measured accurately. He says that assessment of speed from vehicle damage is not simply dependent of the 'maximum' crush depth at a specific point.
• The damage to vehicles involved in collisions is dependent on a number of factors including impact speed, vehicle profile, object(s) struck and the dynamics of the collision itself, such as vehicle movement and angles of impact. Damage assessment is also dependant on the structural characteristics of each individual vehicle.
• There are a number of complex computer programmes available that use the results obtained from controlled 'crash tests' to measure the amount of energy required to cause damage. The crush energy is then used to calculate vehicle speed. In order to do this 'all the energy in the system has to be accounted for'.
• Mr Generowicz has not discussed the damage to the Ford, the post-impact movement of the vehicles or the energy that would have been expended in eventually bringing them to rest. Contrary to good scientific practice Mr Generowicz does not appear to have done appropriate calculations and his analysis appears to be based on a subjective opinion. His conclusions are not objective and cannot be substantiated.
• Mr Generowicz's report does not appear to have taken into account the damage to the Getz's axle. Because the axle area withstands impact better than other areas due to its strength, it can reduce the overall crush depth and that can lead to underestimation of speed. Mr Generowicz had also not mentioned other factors, such as restitution co-efficients.
• Mr Generowicz's report appeared to be based on a subjective determination of the closing speed of the vehicles based only on a picture of the damage sustained by the Getz. Collision investigators who claim to be able to visually estimate the speed of impact of vehicles, are more than likely describing the speed that would cause the equivalent damage when a vehicle struck a solid immoveable object. This was a different scenario to where a collision occurs between two moving vehicles and where both of them are subsequently deformed.
• Another means of calculating pre-impact speed is to use the 'conservation of momentum' method. If this method had been able to be accurately performed it would show that increasing the angle of the exit path of the Getz would only increase the approaching speed of the Ford in order for the vehicles to come to rest in the same position. This would be contrary to the method adopted by Mr Generowicz which suggested that the increased angle of exit would serve to reduce the speed of the Ford.

65 Constable Magorian concludes that Mr Generowicz's report was not based on 'any accepted forensic collision analysis practice'. He is of the view that Mr Generowicz's opinions may not be accurate and should not be relied upon. Mr Generowicz's opinion of closing speed for the Ford is 'quite simply a guess'. He says it may have been possible to calculate the speed of the Ford from the damage sustained at impact. However, that required the application of accepted protocols which had not been done by Mr Generowicz. Further, without accurate damage profile measurements of both vehicles it was not possible to objectively determine the speed of either vehicle at the time of the collision.

66 In examination-in-chief, Constable Magorian said that because the Ford was fitted with ABS, anti-lock braking, there were no skid marks or tyre marks on the road from that vehicle prior to the point of impact with the Getz. This did not mean that it had not been under brake prior to the point of impact (ts 23/3/10, page 73).

67 Constable Magorian repeated the views expressed in his report. He said it was also wrong to take into account the tare weight of a vehicle which did not include the weight of the fuel in it or the weight of the occupants of the vehicle. Mr Generowicz had taken into account the post-mortem weight of Mr Galestine but had not taken into account the weight of the occupants of the Ford. In respect of the weight of the Ford, Constable Magorian gave evidence that the heavier the Ford, the less speed it had to be doing in order to cause the damage to the Getz and to push it to where it stopped (ts 23/3/10, page 76).

68 Constable Magorian said that he did not try to estimate the angle of the Getz at the time of impact. All he could say that it was at a sufficiently shallow angle for the Ford to get hold of the Getz and move it to where it ended up. However, he said that there was nothing on the road or in the damage itself to prove the angle (ts 23/3/10, page 81). Thus, he did not accept Mr Generowicz's opinion about the speed of the Ford.

69 Constable Magorian testified that evidence that analysis of the crush depth was of assistance in determining speed, but not on its own. He said that other data was required such as the length of the crush profile, the impact damage and peripheral damage. He said you would also need to take into account the damage profile to both vehicles, the stiffness co-efficients of both vehicles and the energy expended in moving the vehicles from the area of impact to where they came to rest. He said that to estimate speed on the basis of the greatest depth of the crush profile was not scientific; it was just a guess (ts 23/3/10, page 85).

70 He referred to two computer programmes that could be used to analyse speed from data which were not used in Western Australia because of lack of training. He said that he had recently sent data to the UK police, presumably for analysis using these programmes. He said that in order to accurately analyse speed you needed 'good data'. He said that there was not good data in this case (ts 23/3/10, page 85).

71 Constable Magorian said that to Mr Generowicz's use of the vector component to estimate the Ford's closing speed of 80 km per hour, decreasing to 63 km per hour by the point of impact, was inaccurate. Constable Magorian's view was that the Ford had to be going faster at the point of impact because it was under maximum deceleration from braking and the damage to its front right tyre. The Ford would not have taken the distance it did to stop if it was only travelling at 63 km per hour.

72 In cross-examination it was put to Constable Magorian that the Ford could have been under power after the point of impact. He acknowledged that could have been the case. However, he said that he had never come across a case where a driver had accelerated after an accident unless he had hit the accelerator pedal by accident or panic. He said that to estimate the Ford's speed at impact at 63 km an hour there would have to have been no braking between impact and the point the Ford came to rest (ts 23/3/10, page 95). He said that there was no evidence to say either way whether the Ford was under acceleration after the point of impact (ts 23/3/10, page 103).

73 Constable Magorian said that Mr Generowicz had done reports for the major crash section of the Western Australian police force in the past but none since 2000.

74 Under cross-examination Constable Magorian retained his view that it was not possible to make an objective determination about crush damage from photographs. He said that the crush damage 'quite possibly' could have been measured physically if the Getz had been available. He said that if the relevant vehicle was not available the next best thing to do was not to use photographs but rather not to attempt a measurement at all (ts 23/3/10, page 99).

75 It was put to Constable Magorian that the Getz did not have an axle across the width of the car. Constable Magorian said that he was not a mechanic and he did not know the answer to that, although the vehicle examiner's report did refer to an axle. It was put to him that it would make a difference to his opinion if the Getz had independent suspension linkages rather than an axle. Constable Magorian said that he had been taught that it was unreliable to use a side impact crush profile where the damage was over one of the axles (ts 23/3/10, page 104).

76 At the conclusion of Constable Magorian's evidence, the prosecutor closed his case. Mr Giudice then made a non-case submission which was rejected. There was no mention of the absence of Ms CC's evidence either before or after the close of the prosecution case.

77 On the morning of 24 March 2010, Mr Hunt commenced his case by calling Bohdan Sedzimir Generowicz. Mr Generowicz gave evidence that he was a civil engineer and that he operated under the business name of Forensic Engineering Consultants. He has a Bachelor of Science in Civil Engineering from London University and a Masters of Science in Highway and Traffic Engineering from the University of Birmingham. For 18 years he was a consultant to the major crash section of the Western Australian police service. Mr Generowicz's report was tendered in evidence.

78 On 9 February 2010, Mr Generowicz inspected the crash scene and took photographs. He said that the two cars parked at the time of the collision on the southern side of South Terrace adjacent to the driveway would have effectively blocked the view of the South Terrace westbound lane to the driver of the Getz as he was leaving the driveway until the position of the driver was about half a metre from the southern edge of the westbound carriageway and the front of the vehicle was protruding into the westbound carriageway. On 11 February 2010 he examined the Ford.

79 Mr Generowicz said that from his knowledge of the cause of collisions the first contact between the two cars would have occurred approximately 1.5 m before the commencement of the gouge marks on the road's surface. These gouge marks have already been described. He estimated that if the Getz was accelerating at approximately 2 m per second it would have reached a speed of 17.6 km per hour at the point 1.5 m from the commencement if the gouge. He said that this speed could have been greater if the distance travelled by the Getz was curved and therefore longer or if it had not stopped at the point where a driver could see down the westbound lane before proceeding or both. However Mr Generowicz had used the speed of 17.6 km per hour in his analysis.

80 Mr Generowicz said that when estimating the speeds of vehicles involved in a collision, it was essential to know their 'mutual orientation at first contact and the principal direction of force (PDF)'. He said that this is normally established from a detailed inspection of damage to both vehicles but this was not possible in this case. Therefore, he had to resort to reasonable estimates from post-collision photographs based on his past experience of similar collisions.

81 He said that as far as he could see from the photographs, the prime engagement took place between the mudguard of the Falcon and that of the Getz, proceeding onto the junction of the A-pillar and firewall of the Getz and to its right door. He said that given the direction of travel of both vehicles it suggested to him that the direction of the Getz was somewhere between 30 - 45 degrees to that of the Ford at the time of impact.

82 Further, the maximum depth of intrusion by the Ford was of the order of 55 - 60 cm measured at right angles to the length of the Getz was consistent with the joint closing speed of the vehicles (the vector sum of their individual speeds) of not more than 80 km per hour. Given the estimated speed of the Getz at 17.6 km per hour, the estimated speed of the Ford at first contact was between 65 - 67.5 km per hour. When allowance was made for the large occupancy of the Falcon, Mr Generowicz's estimated speed range reduced to between 61.3 - 63.7 km per hour.

83 Mr Generowicz noted that the gouge and tyre marks were to the north of the estimated path of travel of the Ford. Mr Generowicz said that any deviation of this nature would be entirely due to the northward component of the momentum of the Getz. However, the estimated speed of the Getz was insufficient to produce a deviation of this magnitude. Thus, Mr Generowicz concluded that the movement must have either been because the actual speed of the Getz was higher and the Ford correspondingly lower or because the Ford made a last moment evasive manoeuvre to its right, or perhaps both.

84 Mr Generowicz concluded that it was not possible to draw any reliable inferences as to the post-impact speeds of the vehicles from the tyre and gouge marks recorded in the police plan.

85 In examination-in-chief Mr Generowicz said that he could make a 'reasonably well-educated guess' of the speed of a vehicle involved in an accident from looking at the resulting damage (ts 24/3/10, page 9).

86 Mr Generowicz gave evidence that he knew that the Getz did not have 'an axle as such'. He said that each wheel was independently suspended from the frame (ts 24/3/10, pages 12 - 13).

87 Mr Generowicz confirmed that the first contact between the two vehicles would have occurred about 1.5 m before the commencement of gouge marks on the road surface. He gave evidence that that was because the impact between the two vehicles would take between .09 - .11 of a second. Taking the mid-point of .1 of a second, a vehicle travelling at 60 km per hour would travel about 1.5 or 1.6 m in that distance. I digress to note that this analysis assumes that one vehicle is going 60 km per hour but does not appear to take into account the speed of the other vehicle. It also assumes that the gouge mark will start as soon as is physically possible after the two vehicles have come into contact.

88 Mr Generowicz said that if the Ford was heavier than the reported tare weight then it would have been travelling slower than he determined.

89 Mr Generowicz said that everything he determined about the Getz's movement was 'just a reasonable assumption' based on the post-collision photographs and his experience (ts 24/3/10, page 18). This was true for his estimation of the speed of the Getz at the time of impact which he said was an 'educated guess'. He believed that because the front mudguard of the Getz had been involved in the collision, the angle of the Getz at the time of impact must have been quite acute. He then assessed the depth of the crush profile of the Getz on the basis of photographs and the published width of a Getz motor vehicle. He gave evidence that his 'best estimate' of the maximum crush depth of the Getz was approximately 55 - 60 cm or approximately one third of the width of the car (ts 24/3/10, page 21). He said that this opinion was confirmed when looked at the photographs of the inside of the damaged Getz.

90 Mr Generowicz said that when he first saw the crash photographs, he estimated the closing speed of the vehicles to be not more than 80 km per hour. He then analysed what the crush depth of the impact on the Getz would be if the speed was 80 km per hour. He found that the intrusion would be of the order of 55 - 60 cm and that appeared to him to match the one third depth that he could see on the photographs (ts 24/3/10, page 23). Mr Generowicz was confident of his estimate of 80 km per hour. He said that based on his experience, a speed of 90 km per hour would have caused a lot more damage.

91 In respect to the reduction of the impact speed of the Ford that Mr Generowicz had made in his report for the weight of the occupants of it, in examination-in-chief he said he did not want to persist with that reduction because the weight of people in a 2 tonne vehicle was 'neither here nor there'. He said that without the reduction the impact speed of the Ford would have been between 65 - 67.5 km per hour (ts 24/3/10, page 26).

92 Mr Generowicz said that in a photograph he saw gouge marks leading to the rear wheel of the Getz. He said that that meant that probably a metal part of a vehicle was being pushed with force on the road surface. If the Ford was pushing the Getz at that stage, then that meant the Ford would have been under power. This appears to be because Mr Generowicz does not believe that if the two vehicles had been slowing at that point the force would have been sufficient to produce the gouges.

93 Mr Generowicz said that if a vehicle decreased in speed from 80 km per hour to 60 km per hour over 150 m that would indicate that if the car was on a level surface, the driver had taken their foot off the accelerator. At the most it would be 'very, very, very light braking'. If the car had slowed from about 100 km per hour to 60 km per hour, presumably over the same distance, Mr Generowicz said that would equate to 'gentle braking' (ts 24/3/10, page 31).

94 Under cross-examination Mr Generowicz conceded that vehicles had different strength co-efficients in different places and there were different co-efficients between vehicles. If crush damage was used to assess speed he denied that it was essential to know the strength co-efficients of different portions of a vehicle in order to make an accurate assessment of its speed.

95 Mr Generowicz acknowledged that he did not know what the duration of impact was in this particular case. He said that he could only go 'on comparable vehicles' and he acknowledged that his opinion on that issue it was an 'educated guess' (ts 24/3/10, page 33).

96 As to his opinions as to the speed and angle of the Getz as it came out of the driveway, Mr Generowicz acknowledged that each was 'a reasonable guess' (ts 24/3/10, page 38). He acknowledged that the vector speed of the two vehicles being 80 km per hour was based on the guessed speed and angle of the Getz and his estimate of the crush depth on the Getz. Despite this he said:

Well, the 80 kilometres per hour - that's the only thing that I am confident about (ts 24/3/10 page 38).

97 Mr Generowicz conceded that if the Ford had been under hard braking for 20 m - 30 m before the collision it would have been travelling faster than his estimated speed of the vehicle at the time of impact. He would not say that it would have been travelling much faster but he could not say how much faster (ts 24/3/10, page 39).

98 Mr Generowicz was cross-examined about whether he had taken into account that in order for the Ford to push the Getz to the west, it had to overcome the speed at which the Getz was moving east. Mr Generowicz said that he agreed that the Ford had to overcome the speed at which the Getz was moving in the opposite direction but said that he could not do an analysis of that momentum because he did not know the momenta of the vehicles after impact (ts 24/3/10, page 40).

99 Mr Generowicz had presented a page of handwritten calculations to the court and he explained these in cross-examination. He had determined that the combined speed of the two vehicles was 80 km per hour and then he worked backwards from there to estimate that the total deformation of the two cars would have been about 78 cm. He again divided this between the Getz at approximately 58 cm and the Ford at 20 cm. He said that the Getz would have probably been dented by between 55 - 60 cm and this was consistent with what he saw in the photographs of the Getz. His Honour put to Mr Generowicz that that calculation was 'sort of pulling yourself up by your own boot straps'. Mr Generowicz replied that that was the best he could do from the photographs (ts 24/3/10, page 48). He also acknowledged that he had not mentioned the estimated 20 cm intrusion to the Ford in his report. Mr Generowicz acknowledged that he could have determined the intrusion on the Ford by inspecting it. However, he said that it was difficult to do because it would have required obtaining a cherrypicker and taking an overhead photograph of the damage profile to the Ford.

100 Mr Generowicz conceded that the vector speed of the two vehicles of 80 km per hour was an educated guess (ts 24/3/10, page 51).

101 In re-examination Mr Generowicz said that he had not used stiffness co-efficients in arriving at his conclusions. He had used time factors instead. He had also used the published results of side collisions for comparable vehicles. He said that these were right-angle impact collisions and not angular collisions. He said that stiffness co-efficients were mainly used in computer programmes. He was 'more confident' with the time factors because, in his view, these have not changed over the years. He said that he had devised his own method of analysis (ts 25/3/10, page 55).

102 It was an essential part of his calculations that the length of the impact between the two vehicles would have been approximately .1 of a second. In cross-examination he had been asked about the possibility that the length of the impact was .15 of a second. In re-examination he said that he could not say what the side intrusion of the Getz would have been if the length of the collision was of that nature (ts 24/3/10, page 55).

103 Mr Hunt gave evidence in his own defence. At the time of his evidence he was 20 years old and a fourth year electrical apprentice. He had been raised on a farm in rural Western Australia. He said he had first driven a motor car when he was about 8 years old on the farm. He had driven trucks, tractors, combine harvesters, cars and motorbikes. He had experience driving different vehicles which belonged to his employer, his friends and his parents. He had also owned his own car. When he turned 17 he obtained his licence. During the course of that year he also did a one day defensive driving course. He estimated that he did between 30 - 40,000 kms driving per year. This was because he had gone to school and then worked in Perth but he went home on the weekends and holidays to play sport and to see his family.

104 In November 2008, he was driving the Ford Falcon XR-6, which was involved in the incident. His parents had purchased it second-hand about six months earlier. It was not turbo-charged and Mr Hunt believed it had the standard four litre, six cylinder Ford Falcon sedan engine. He said it sounded like an ordinary Commodore or Falcon and was generally in good condition.

105 On Thursday, 13 November 2008 he went to work. He said he did not consume alcohol that evening and he had had a good night's sleep. On the Friday he awoke at about 6.00 am, had breakfast and went to work. He also ate lunch that day. After work he went home. He was not tired and was not suffering from any illness. At approximately 3.30 pm in the afternoon Mr Hunt went to his friends' place in Como and had his first full strength beer, which was in a stubbie. He said that he left his friends' place at 10.20 pm. He was asked how many beers he had had in the period he was at his friends' house and he said: 'Probably about six beers' (ts 24/3/10, page 64). However, he had not counted the beers he had consumed that night and he gauged that number on the length of time and the pace at which he usually drank. Mr Hunt thought that he had something to eat that evening.

106 Mr Hunt and his friends then decided to go to a hotel in South Perth in Mr Hunt's Ford. He said he felt like he was capable of driving and felt that he was sober (ts 24/3/10, page 65). He said he was not in a hurry to get to the hotel and he did not drink whilst he was driving.

107 On the way to the hotel he drove to Monash Avenue, Como to see some friends. Some more people decided that they wanted to go to the hotel. There was only enough room in the Ford for one passenger in the front of the car and four passengers in the backseat. There was another person who wanted to go so they got into the boot of the Ford.

108 Mr Hunt said he was aware that he had a passenger in the boot and was 'doing [his] best to make sure that he was safe' (ts 24/3/10, page 68).

109 From Monash Avenue in Como Mr Hunt turned left onto South Terrace. He said that there was no traffic that he could see on South Terrace and the lighting was typical of night-time street lighting. He had his headlights on low beam. Mr Hunt said that when he left the traffic lights at the intersection of Canning Highway and South Terrace he accelerated quite quickly up to 80 km per hour. He said that it was faster than usual acceleration. However, his foot was not flat to the floor; he did not spin his wheels and he was not fishtailing.

110 Mr Hunt was asked how he knew he got to 80 km per hour. He responded:

Well, it just felt like it. From my experience of driving it felt like 80 km per hour (ts 24/3/10, page 71).

111 He said he did not look at the speedometer. He still did not see any other vehicles on the road. He said that he maintained his speed at 80 km per hour and did not continue to accelerate.

112 Mr Hunt said that when he was at a point which would have been about 150 m east of the incident site, he took his foot off the accelerator and lightly applied the brake. He said that he was looking straight ahead at the traffic lights in front of him at Coode Street. They were red. He could not remember exactly what was happening in the car but nobody was fooling around. He recalled that all the parking bays on the southern side of South Terrace were full. He said that a car, which was obviously Mr Galestine's Getz, then appeared in front of him and he 'went for the brakes and then collided with the car' (ts 24/3/10, page 73).

113 He thought that when he saw the Getz he was about 20 m, possibly less, away from it. It was directly in his path. He did not know whether it was moving or stationary. He said that he hit the brakes for 'probably about a second' and as hard as he could (ts 24/3/10, page 73). However, almost simultaneously with him pushing the brake pedal there was an impact between the Ford and the Getz.

114 Mr Hunt said that after the cars collided, he accelerated in order to get the Ford into Fortune Street. None of the passengers in the Ford were injured.

115 Mr Hunt said that he had driven down South Terrace at night time before. It was not a busy road at night time. Previously he had not had a 'close encounter' on South Terrace with another car pulling out of a driveway.

116 He said that at the time he first saw the Getz he thought his speed was about 65 km per hour. He said:

It just felt like 60 kilometres, or 65 kilometres per hour (ts 24/3/10, page 75).

117 Mr Hunt recalled having a conversation with Constable Ward but could not recall if it was verbatim as Constable Ward had recounted in evidence. However, he acknowledged being asked by Constable Ward how fast he was travelling and that his answer was 'about 80'. He said that he meant that he was going about 80 as he was travelling down South Terrace. He did not mean that that was his speed immediately prior to impact.

118 In cross-examination, Mr Hunt said that he recalled accelerating after the collision. It was put to him that the vehicle examiner's report states that 'electrically-activated throttle would not operate due to jammed accelerator pedal and damaged fuse box (crash caused)'. Therefore, he could not have accelerated around the corner because the accelerator pedal was jammed after the crash. Mr Hunt responded that he did and that he moved into Fortune Street.

119 Mr Hunt said that he had thought about whether he was 'under the limit'. He said that he had chosen to drive because he did not think he would be over the limit. He acknowledged that he was wrong. He acknowledged that he had also taken the risk of having a passenger in the boot of his vehicle. It was put to him that accelerating to 80 km per hour on South Terrace was not driving carefully having regard to the passenger in the boot. Mr Hunt said that the road was empty and clear and he did not think that there was 'a considerable danger at all'.

120 Mr Hunt acknowledged that at the time he accelerated after Canning Highway he was not thinking about the speed he was doing and that his assessment that he was doing about 80 km per hour was a reconstruction. Mr Hunt denied that he accelerated again when he was near the park in which Mr Hewson was sitting.

121 Mr Hunt said that at the time of the incident he knew that there could be cars coming out of the driveways on the side of South Terrace.

122 In respect to his conversation with Constable Ward, Mr Hunt acknowledged that he said to Constable Ward that he hit the Getz 'pretty hard'. He acknowledged that the next question may have been 'How fast were you going?' Although he claimed not to have a recollection of that and said that the questions could have come in any order.

123 Mr Hunt said that he applied the brake before the collision for a length of three metres. The following exchange took place between the prosecutor and Mr Hunt:

I suggest to you that you were driving irresponsibly on this evening?---I disagree with you.

Well, you were over the limit, weren't you?---Yes, I was.

That's irresponsible?---I didn't know that I was going to be over the limit.

You would agree with me on an objective level, driving whilst over the limit is irresponsible, isn't it?

Is that a difficult - - -?---Yes, yes, it is.

Right?---It is.

Driving with someone in the boot is irresponsible, isn't it?---Yes.

You did that?---I did.

Driving 20 K over the speed limit is irresponsible in a 60 zone?---Again, in the road - - -

Objectively?---Well, it's illegal.

I'm not asking whether it's illegal. It's irresponsible, isn't it?--I don't know whether it's irresponsible, but it is illegal.

So I will ask the question again. You were prepared to drive irresponsibly and illegally on this night?---I wasn't prepared to drive irresponsibly.

But you did?---No, I didn't.

But you just admitted it?---No (ts 24/3/10, pages 88 - 89).

124 Mr Hunt also denied that he was talking to any other passenger at the time of the incident or that any conversation between his passengers was distracting him.

125 In respect to the number of beers he had, Mr Hunt said that he did not count them but it could have been less. He did not think it was more. However, he said he could not be certain.

126 In re-examination, Mr Hunt was asked by his counsel whether he had thought about the possibility of someone coming out of a driveway without looking or when it was unsafe to do so. Mr Hunt said that at the time he had not thought about that. He said he was just concentrating on the road. He thought that someone coming out of a driveway would wait until the roadway was clear before they made a turn.

127 At the conclusion of Mr Hunt's evidence there was a break in the transcription. It commences again with counsel discussing with his Honour an adjournment until the following morning to determine whether Ms CC could be contacted. The prosecutor told the magistrate that the investigating officer and he had been provided with two telephone numbers which they had been ringing but there had been no answer on them. The prosecutor said that the number he had was a mobile number and when he had tried to ring it there was no dial tone and no answer. The court then adjourned until the following morning.

128 On the morning of 25 March 2010 Mr Giudice commenced by closing the case for the defence. There was no further discussion about the availability of Ms CC.

129 At the conclusion of counsel's submissions, the magistrate reserved his decision. On 27 April 2010, his Honour delivered oral reasons for his decision to convict Mr Hunt.

130 After citing the relevant statutory provisions and some basic legal principles, his Honour said the elements of the offence were as follows:

(2) that motor vehicle was involved in an incident occasioning the death of Mr Galestine; and

(3) at the time of the incident, Mr Hunt was driving in a manner, which expression includes speed, that was having regard to all the circumstances of the case dangerous to the public or to any person.

131 His Honour said that if those elements were proved beyond reasonable doubt, pursuant to the Act s 59B(6), Mr Hunt bore the onus of proving that Mr Galestine's death was not in any way attributable to the manner, which expression includes speed, in which Mr Hunt was driving the vehicle. Section 59B(6) states:

(6) In any proceeding for an offence against section 59 or 59A it is a defence for the person charged to prove that the death, grievous bodily harm or bodily harm occasioned by the incident was not in any way attributable (as relevant) -

(a) to the fact that the person charged was under the influence of alcohol, drugs, or alcohol and drugs; or

(b) to the manner (which expression includes speed) in which the motor vehicle was driven.

132 His Honour then summarised the undisputed facts before summarising the evidence of the prosecution witnesses, Mr Generowicz and, finally, Mr Hunt.

133 The magistrate then identified the applicable law. He referred to the amendments which were made to the Act s 59 in November 2008 and The State of Western Australia v Gibbs [2009] WASCA 7 where Steytler P said:

The changes introduced by the amending Act are significant. Most importantly, there is no longer any requirement that causation be proved as an element of the offence. The prosecution need merely establish that the 'incident' occasioned death or grievous bodily harm. By subs 59B(6) the person charged bears the onus of proving that the death or grievous bodily harm occasioned by the incident was not in any way attributable to the fact that he or she was under the influence or to his or her manner of driving [25].

134 Next, his Honour considered what constituted 'dangerous' to the public or any person. His Honour referred to Kaighin v The Queen (1990) 1 WAR 390 where the court said:

It seems to us that the following propositions can be derived from the above authorities and a construction of s 59(1) of the Road Traffic Act:

...

(b) 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 are no persons in the vicinity is not dangerous driving.

(c) For driving to be 'dangerous' within the meaning of s 59(1) it must in reality, and not speculatively, be actually or potentially dangerous to the public or another person.

(d) A momentary lapse of attention may constitute dangerous driving.

(e) The test as to whether driving is dangerous is objective.

(f) Section 59(1) does not exclude a defence based on absence of fault, including a defence based on s 25 of the Criminal Code, or a defence based on the conduct of another person (395).

135 The magistrate noted that the 2008 amendments did not affect the principles set out in Kaighin in (b), (c), (d) and (e).

136 His Honour said that there was no dispute between the parties that the Ford driven by Mr Hunt had been involved in the incident or that the incident occasioned the death of Mr Galestine. The issues were:

(1) whether the prosecution had proved that at the time of the incident, Mr Hunt was driving in a manner that was, having regard to all the circumstances, dangerous to the public or any person; and

(2) if so, whether Mr Hunt had established on the balance of probabilities that the incident was not in any way attributable to the fact that he was driving in a manner that was dangerous to the public or any person.

(1) By the time Mr Hunt left to drive to the hotel he had a blood alcohol level of 0.077, 0.027 over the legal limit. He had five friends in the car, including one in the boot. I digress to note that the evidence is to the effect that Mr Hunt had five or six passengers. The difference is not of great moment.

(2) Mr Hewson gave his evidence 'in a considered way'. He did not exaggerate and his evidence was corroborated in full by Mr Brereton, Mr McDonald and Mr Conroy (ts 27/4/10, page 25).

(3) The evidence of Mr Hewson, Mr Brereton, Mr McDonald and Mr Conroy that at a point 150 m from the crash scene Mr Hunt was travelling at an excessive speed in the vehicle, somewhere in the order of 100 km per hour, was accepted.

(4) Mr Hunt's evidence that he reached a maximum speed of 80 km per hour on South Terrace was rejected on the bases that it was only his estimate and, given that he had been drinking, his 'feeling of speed' was 'at best unreliable' (ts 27/4/10, page 25).

(5) The incident occurred within seconds of Mr Hunt's Ford passing the prosecution witnesses.

(6) Mr Generowicz's calculations of the speeds of the Ford and the Getz were not accepted on the basis that Mr Generowicz made too many assumptions which were not based on proven facts (ts 27/4/10, page 26).

(7) Mr Galestine had driven out on to South Terrace from the driveway of the units at number 79. Whether he was moving or stationary at the point of impact is not known. The Getz was crossing the westbound lane and 'it would seem' it was turning right to travel east (ts 27/4/10, page 27).

(8) The Getz pulled out in front of the Ford. Mr Galestine was obliged to give way to Mr Hunt's Ford. Whether Mr Galestine saw Mr Hunt's Ford or not will never be known but the Getz's position on South Terrace obviously was a significant cause of the incident (ts 27/4/10, page 27).

(9) The evidence of Constable Ward as regards to the conversation he said he had with Mr Hunt, was accepted.

(10) Mr Hunt's evidence that his answer of 'about 80' when Constable Ward asked him 'how fast were you going' was a reference to how fast the Ford was travelling 100 m east of the scene of the collision, was not accepted. Rather, the answer given by Mr Hunt to Constable Ward related to the speed of the Ford at the time of the incident.

(11) Relying on the evidence of Mr Hewson, Mr Brereton, Mr McDonald, Mr Conroy, and to a lesser extent Mark Elsing, Mr Hunt accelerated very quickly down South Terrace from Canning Highway, reaching a speed of at least 100 km per hour 150 m from the crash site (ts 27/4/10, page 28).

138 His Honour said that he could only draw an inference against Mr Hunt if it was the only reasonable inference on the facts and bearing in mind the burden of proof which is that the prosecution has to prove its case beyond a reasonable doubt. His Honour then found:

Given the speed of [Mr Hunt] 150 metres from the accident, the manner he was driving down South Terrace, based upon the evidence of Hewson, Brereton, McDonald, Conroy and Elsing, and the time between when they observed [Mr Hunt] driving very fast and the accident occurring a second or two later, my view is that the only reasonable inference I could draw is that [Mr Hunt] at the time of the incident, which includes speed immediately before he saw the Getz and applied the brakes, was excessive and greatly in excess of the speed limit (ts 27/4/10, pages 28 - 29).

139 His Honour rejected Mr Hunt's evidence about his maximum speed, as well as his evidence that he had slowed from 80 km per hour to 65 km per hour prior to the collision. He said that this rejection was as a result of having regard to other evidence, in particular, to his admission to Constable Ward, that Mr Hunt had been drinking and that he had not looked at his speedometer.

140 His Honour then said that Mr Hunt's manner of driving constituted dangerous driving in the circumstances that the area was built up, had driveways and side streets entering South Terrace and Mr Hunt's excessive speed (ts 27/4/10, page 29).

141 His Honour said that he accepted that Mr Hunt did not know that the Getz was going to pull out in front of him but that that was just the sort of event which was reasonably foreseeable on a road in a built-up area. Despite that, the magistrate found that by pulling out of the driveway, Mr Galestine contributed 'in no small part' to the collision (ts 27/4/10, page 30).

142 Finally, his Honour considered the second issue which was whether Mr Hunt had proven on the balance of probabilities that the death of Mr Galestine was not in any way attributable to his manner of driving. His Honour found:

However, on evidence before me it is not possible to include [sic] that the excessive speed [Mr Hunt] was driving at did not contribute to the death of Mr Galestine. As a matter of commonsense the greater the speed a vehicle travels the greater the time it takes to bring the vehicle to a halt and therefore the more likely a collision. The greater the speed on impact the more severe the damage to the vehicle and the greater the prospect of serious injury or death to an occupant in the vehicle that is hit (ts 27/4/10, page 30).

143 His Honour then proceeded to convict Mr Hunt of the charge.

144 After convicting Mr Hunt, the magistrate heard some submissions from the prosecutor in respect to penalty. He then ordered a pre-sentence report and adjourned sentencing. Mr Hunt's bail was renewed until the adjourned date.

145 In the meantime, the parties filed submissions on sentence and the prosecution provided the court with victim impact statements.

146 On 27 May 2010 the prosecutor concluded his submissions on sentence, Mr Giudice then made submissions on behalf of Mr Hunt, and the magistrate gave ex tempore reasons for imposing a penalty of 18 months' imprisonment.

147 In the course of those reasons, his Honour said:

What can however be said is that your driving that night was dangerous and it was not as a result of momentary inattention. You drove dangerously the length of South Terrace from Canning Highway to the point of the accident, some 700 metres. Although it cannot be said that your manner of driving was the sole cause of the accident, clearly it was a major contributing factor.

On that night as I've said, you drove at an excessive speed. You drove with a blood alcohol level in excess of the legal limit although the prosecution don't allege the alcohol you consumed was a contributing factor to the manner of your driving. You also drove with five passengers, one in the boot. Clearly that night when you drove you were irresponsible and had little regard to the road rules or to other road users. The result in loss of life would be devastating for any family. Mr Galestine's family is no exception. His death has devastated his daughter and his wife.

... No punishment imposed by me would bring him back. However, acknowledging the family's grief and loss and in determining the penalty I must impose the family's loss is but one factor in a number of factors that must be taken into account.

It is to your credit that after the accident you assisted as far as you were able, you rang authorities and cooperated with the police when they arrived. At the time of the crash you were 19 years of age. You had no previous convictions, you come from a good family and you are no doubt devastated by what occurred. You went to school at Scotch College, you got a good TAE and then you commenced an apprenticeship. You have gained numerous certificates and achievements and I've read a number of glowing references stating that you are a hard-working young man. In the pre-sentence report it states that you were devastated by what occurred and I accept despite the fact that you pleaded not guilty, you are remorseful for what occurred (ts 27/5/10, pages 12 - 13).

148 His Honour then found that the manner in which Mr Hunt drove required a term of imprisonment. He noted that the Court of Appeal had on numerous occasions stated that dangerous driving resulting in death requires a sentence which sends a message to other road users, being that if death arises out of dangerous driving, a term of imprisonment will be imposed.

149 The magistrate then went on to consider whether that term of imprisonment should be suspended. His Honour noted that Mr Hunt was young, had no prior criminal record and excellent antecedents. However, his Honour said that despite those factors, Mr Hunt's manner of driving required an immediate term of imprisonment. He said that although Mr Galestine contributed to the incident, Mr Hunt's offending was serious.

150 Mr Hunt's written submissions commence by referring to the Criminal Appeals Act 2004 (WA) s 30(3)(a)(i). However, this appeal is made under the Criminal Appeals Act pt 2, not pt 3 in which s 30 appears. Unlike s 30, s 8 which appears in pt 2 and provides the grounds for appealing against a decision of a magistrate to a single judge, does not include the ground that the verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. I will proceed to determine ground 1 on the basis that the statutory ground for appealing is contained in the Criminal Appeals Act s 8(1)(b); that is, that there has been a miscarriage of justice. In this case the allegation is that there has been a miscarriage of justice because the evidence was incapable of supporting a finding beyond reasonable doubt that Mr Hunt was travelling at a speed constituting dangerous driving at the time of the incident.

151 I understand Mr Hunt's submission to be that even though there may be some evidence to sustain his conviction, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand': Hayes v The Queen (1973) 47 ALJR 603, 604; M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 - 493.

152 Where such an issue is raised, the question which I must ask myself is whether I think that upon the whole of the evidence it was open to the magistrate to be satisfied beyond reasonable doubt that Mr Hunt was guilty: M v The Queen (494 - 495). In answering that question, I must pay full regard to the consideration that the magistrate was entrusted with the primary responsibility of determining guilt or innocence and to the consideration that he had the benefit of seeing and hearing the witnesses: M v The Queen (493). I must not substitute a trial by this court for a trial by a magistrate. Having said that, a doubt which I have will also be a doubt which the magistrate ought to have experienced unless his advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by me.

153 Mr Hunt says that the magistrate should have had a reasonable doubt that at the time of the collision he was driving in a manner (in this case, at a speed) that was, having regard to all the circumstances, dangerous to the public or any person (ground 1). He says that I should consider ground 1 together with grounds 9, 11 and 12 which are, in effect, particulars of alleged errors the magistrate made which enabled him to draw the inference of guilt against Mr Hunt.

154 Before I consider the evidence it is necessary to summarise the legal principles relevant to the offence. In R v Coventry [1938] HCA 31; (1938) 59 CLR 633, in relation to an offence of driving in a manner which is dangerous to the public, the High Court said that the standard to be applied is an impersonal standard and does not vary with individuals. It is universal in the sense that it is applicable in the case of all persons who drive motor vehicles. An accused may honestly believe that he was driving very carefully, and yet may be guilty of driving in a manner which is dangerous to the public. Despite that, the statutory provision does not exclude an offence of mistake of fact on reasonable grounds or of involuntariness. Further, the court declined to give an exhaustive catalogue of possible defences.

155 In McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44, Barwick CJ discussed the necessity for contemporaneity of the driving which is alleged to be in breach of the statutory prohibition against driving in a manner which is dangerous to the public and the relevant incident. His Honour said:

In some circumstances it may not be enough that the impact is the result of the vehicle having been driven at some earlier point of time in breach of the section. In other circumstances, the interval of time between the driving which is in breach of the section and the impact may be so short that the offending driving can be regarded as persisting to the moment of impact. It is not enough that injury results from the driving or that the death or injury occurs at the time of the impact. The impact must occur whilst the vehicle is being driven in breach of the section ... But the question whether the impact occurred whilst the vehicle was being driven in the manner charged is an essential ingredient of the offence ... and, being a matter of fact, is for the decision of the jury, if there be any evidence upon which they can properly draw the necessary conclusion (47).

The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place (49 - 50).

157 Importantly, his Honour also made the point that it is not the result of the driving which gives it the quality of being dangerous driving. The result may afford some evidence from which the quality of the driving may be inferred but this is not necessarily so. His Honour said:

A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realised by the accused or not, which makes it dangerous to the public within the meaning of the section.

This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby (50).

158 In Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, the High Court again considered the issue of contemporaneity between the manner of driving which was said to be dangerous and the incident which occasioned death or injury. In that case, the relevant statutory provision provided that an offence was committed where the death of a person was occasioned through the impact with any object and a motor vehicle and the motor vehicle was at the time of impact being driven by another person at a speed or in a manner dangerous to the public.

159 The facts were that the appellant had fallen asleep prior to the accident which occasioned the death of one of his passengers. The High Court said that if the appellant fell asleep, even momentarily, his actions were not conscious or voluntary and he could not be criminally responsible for driving his car in a manner dangerous to the public. Further, if after the appellant fell asleep and before the impact, he awoke and attempted to regain control of his car, he would not then be driving in a manner dangerous. This is because a driver, confronted with an emergency, which requires him or her to take steps to avoid an accident, are not driving in a manner dangerous, even if the evasive action fails to avoid the accident. However, the court said:

Even if the motor vehicle was not being driven dangerously at the precise moment of impact, a preceding period of driving in a dangerous manner may be so nearly contemporaneous with the impact as to satisfy this element of the offence. Contemporaneity is a question for the jury (578).

160 In respect to what constituted driving in a manner dangerous, the court said:

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. Although a course of conduct is involved it need not take place over any considerable period. Nor need the conduct manifest itself in the physical behaviour of the vehicle. If the driver is in a condition while driving which makes the mere fact of his driving a real danger to the public ... then his driving in that condition constitutes driving in a manner dangerous to the public (579).

161 In McPherson v Lucas [2008] WASCA 56; (2008) 181 A Crim R 587 the Court of Appeal said:

The State's position is that the objective physical movement of the car is a fact in issue in an offence under s 59A. That is wrong. The relevant fact in issue is the actual driving behaviour of the driver: R v Coventry [1938] HCA 31; (1938) 59 CLR 633; McBride. 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 as in McBride and this case [31].

162 In the same paragraph, the court said that the objective question involved in a case such as that '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, regard is had to what the driver knew or ought reasonably to have known'.

163 This was a circumstantial evidence case. In R v Hillier [2007] HCA 13; (2007) 228 CLR 618 the majority of the court in joint reasons said:

Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal [48].

164 Their Honours then quoted Gibbs CJ and Mason J in Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 535 where their Honours said that the jury (or in this case the magistrate as the trier of fact) must consider all the evidence, and in doing so, may find that one piece of evidence resolves doubts as to another. The trier of fact should consider the accumulation of the strength of the evidence.

165 The point raised by ground 9 is that the magistrate should have had a doubt about the point on South Terrace Mr Hunt was referring to when he told Constable Ward that he was travelling at 'about 80'. I will deal with this first.

166 It is apparent from the magistrate's reasons that in rejecting Mr Hunt's explanation as to the point of time that he was referring to when he told Constable Ward that he was travelling at 'about 80' and in finding that he was satisfied that Mr Hunt was referring to the time of the incident, the magistrate took into account a number of circumstances including:

(1) Mr Hunt could not recall the sequence of Constable Ward's questions;

(2) Constable Ward had contemporaneously recorded the substance of his questions and Mr Hunt's answers;

(3) his acceptance of Constable Ward's evidence as to the sequence in which he asked the questions of Mr Hunt;

(4) the evidence of Mr Hewson, Mr Brereton, Mr McDonald and Mr Conroy as to what they had seen and heard of the Ford that evening and the very short estimates of time they gave between when they lost sight of the Ford and when they heard the sound of the impact between the Ford and the Getz; and

(5) the evidence of Mr Elsing that he heard the noise of what he thought was a high powered performance vehicle accelerating to a high speed followed by the noise of the impact.

167 I am of the opinion that the magistrate was entitled to weigh all the evidence and to conclude, as he did, that Mr Hunt's answer given to Constable Ward that his speed was 'about 80' related to the time of impact, and, in any event, that Mr Hunt's evidence about his maximum speed along South Terrace was unreliable. Given the sequence of questions and that the incident was the obvious issue the subject of this part of the questioning, the only reasonable conclusion to draw was that Mr Hunt's answer related to his speed at the time of the incident.

168 Mr Hunt says that it does not make sense that he told Constable Ward that he was doing about 80 at the time of the collision as even Constable Ward thought he was referring to the point at which he saw the Getz and immediately prior to heavily braking. Mr Hunt says that if this is the case, then it would mean that he was doing less than 80 km per hour on impact.

169 In this respect, it is appropriate to have regard to what the High Court said in McBride (47) and Jiminez (578). Whilst the statutory provision requires contemporaneity between the dangerous manner of driving and the incident, occasioning death, contemporaneity is a matter for the decider of fact. It is not necessarily inconsistent with a finding that an accused was driving in a manner dangerous that at the point of impact or immediately beforehand, the manner of driving was not dangerous because the accused was taking evasive action and in the course of that evasive action he had reduced the speed of his vehicle.

170 It is inherent in the magistrate's findings that he was satisfied that Mr Hunt admitted that he was doing 80 km per hour either at the point of impact or so close to the point of impact that it was irrelevant that he might have braked and his car have slowed, to some extent, by the time of impact.

171 In ground 11, Mr Hunt says that the magistrate erred in drawing the inference that his speed was 'excessive and greatly in excess of the speed limit'.

172 In ground 12, Mr Hunt says that his Honour erred in not making a more precise finding of the speed of Mr Hunt's vehicle at the time of the incident.

173 The magistrate found that the speed of the Ford 'immediately before [Mr Hunt] saw the Getz and applied the brakes, was excessive and greatly in excess of the speed limit'. He rejected Mr Hunt's evidence that he was travelling at 80 km per hour east of the point of impact and had slowed to about 65 km per hour as he approached the point of impact. However, his Honour did not reject what he found to be Mr Hunt's admission to Constable Ward that immediately before the incident the Ford was doing 'about 80'. Given also that the magistrate found that Mr Hunt had accelerated to at least 100 km per hour 150 metres from the crash site, it is implicit in his reasons that his finding was that the excessive speed of the Ford was in the region of 80 km per hour at the time of impact.

174 Mr Hunt says that the evidence is just as consistent with him slowing over the 150 metres prior to the incident as it was at establishing that he had maintained his speed that he was travelling at earlier.

175 The magistrate was entitled to reject, as he did, Mr Generowicz's evidence as to the speed of the Ford immediately prior to the incident. He was also entitled to reject, as he did, Mr Hunt's evidence about the maximum speed he reached and the speed he was travelling at the time of the incident. The magistrate was then left with the evidence of the prosecution witnesses as to the speed of the Ford approximately 150 metres prior to the incident, Mr Hunt's admission that he was travelling 'about 80' at the time of the incident and Mr Elsing's evidence that he heard what he believed was a vehicle accelerating to a high rate of speed very shortly before he heard the sound of what was, obviously, the incident. Coupled with this the magistrate had evidence of the nature of the incident itself, including the damage done to both vehicles and the evidence of heavy braking in the Ford. Taking the evidence as a whole, the magistrate was entitled to come to the finding that he did regarding the speed of Mr Hunt's vehicle at the time of the incident.

176 In support of ground 1, in particular, Mr Hunt has filed nearly 10 pages of written submissions attacking, for a variety of reasons, the evidence of the prosecution witnesses. It is not possible for me to even attempt to summarise every point made in the written submissions but I will endeavour to respond to the main points he has made.

177 In summary, Mr Hunt attacks the magistrate's reliance on Constable Ward's evidence of the conversation with him on the basis that there was insufficient evidence from which the magistrate could conclude that his answer of 'about 80' referred to immediately at or before the time of the incident. I have already dealt with this submission above.

178 Next, Mr Hunt attacks the magistrate's reliance on the evidence of Mr Hewson, Mr Brereton, Mr McDonald and Mr Conroy. This is on the bases that they had very little time to see the Ford, it was dark and they gave varying descriptions of the speed of the Ford. Those matters are accepted but, on the other hand, their evidence was consistently to the effect that the Ford travelled along that portion of South Terrace at no less than 100 km per hour.

179 Finally, the evidence of Mr Elsing is attacked on the basis that he said that he heard a high powered performance engine a couple of seconds prior to the noise of the impact and Mr Hunt says this is not consistent with the engine of the Ford or of the evidence of the other prosecution witnesses as to when he was accelerating. Again, those matters are accepted but the fact that Mr Elsing, who the magistrate found to be credible, heard such a loud engine noise consistent, in his view, with a car accelerating to a high speed is evidence which supported the magistrate's finding that Mr Hunt was still travelling greatly in excess of the speed limit at the time of the incident.

180 These grounds of appeal appear to be based on Mr Hunt's view that the evidence of the prosecution witnesses was so unreliable that the magistrate's only choice was to reject it. However, it was the magistrate's role to determine the credibility and reliability of the witnesses. The matters pointed to by Mr Hunt are not sufficient to establish that his Honour must have rejected the critical parts of their evidence.

181 Further, Mr Hunt's submissions are inherently flawed in that they consider the evidence of each witness in a piecemeal fashion. They do not weigh the weight of the evidence taken as a whole. It may be that the evidence of each individual prosecution witness, taken in isolation, was insufficient to support an inference of guilt. However, it would have been wrong for the magistrate to adopt the approach to the evidence taken by Mr Hunt as it is contrary to the approach which the authorities say should be taken in a circumstantial case.

182 The prosecution evidence was sufficient to enable the magistrate to come to the view, as he did, that after Mr Hunt left the intersection of Canning Highway and South Terrace he accelerated heavily so that, by the time he was on the portion of South Terrace adjacent to Mr Hewson and the home of the other prosecution witnesses, he had deliberately accelerated his motor vehicle so that it was travelling at an excessive speed, somewhere in the order of 100 km per hour. It was further open to the magistrate to conclude that between that portion of South Terrace and immediately prior to the impact of the Ford with the Getz, Mr Hunt was still driving 'greatly in excess of the speed limit'.

183 In regard to linking Mr Hunt's speed further east on South Terrace to that at the point of impact, the magistrate was entitled to rely on the evidence of Constable Ward and to conclude that Mr Hunt's answer to Constable Ward was an admission against his interest that he was doing 'about 80' immediately prior to the impact. This was especially as Mr Elsing's evidence supported a finding that the Ford was still making an excessive engine noise very close to the point of impact, consistent with a vehicle accelerating to a high speed.

184 Mr Hunt says that even if the evidence was capable of establishing that he was going at about 80 and greatly in excess of the speed limit, the evidence was still insufficient to prove that he was travelling in a manner that was dangerous having regard to the following matters:

(1) South Terrace was quiet and there were no other vehicles travelling at the same time between Canning Highway to the east and Coode Street to the west;

(4) Mr Hunt was keeping a proper lookout and slowing for the red traffic lights ahead at Coode Street;

(5) Mr Hunt had driven on the road at night time before and it was not usually busy;

(6) Mr Hunt did not foresee that the deceased or any other person would, without warning, drive out from the driveway into his path when it was unsafe to do so;

(7) a reasonable and prudent driver in the position of Mr Hunt would not have expected Mr Galestine to suddenly drive out into his path;

(8) even if Mr Hunt was doing the speed limit and the deceased had suddenly come into his path, the collision would have occurred;

(9) it was not reasonably foreseeable that someone would drive out of a laneway where South Terrace had narrowed without ensuring that it was safe to do so and without giving way in accordance with the law;

(10) Mr Hunt was entitled to assume that drivers would not do something that dangerous;

(11) Mr Galestine's encroachment onto the carriageway was without warning and sudden; and

(12) although Mr Hunt appreciated that cars would drive out of driveways onto South Terrace he believed, that drivers would wait until the roadway was clear before they did so.

185 The first three points are consistent with the magistrate's findings. As to the remaining points, Mr Hunt's evidence was that he knew that there could be cars coming out of the driveways on the southern side of South Terrace. At the time he was driving along South Terrace that evening, he had not thought about the possibility of someone coming out of a driveway without looking or when it was unsafe to do so. He said he was concentrating on the road. He thought that someone coming out of a driveway would wait until the roadway was clear before they made a turn.

186 In my opinion, a reasonable and prudent driver in the position of Mr Hunt who knew that there were driveways on the south side of South Terrace and who appreciated also that there were cars parked along that southern side would have turned their mind to the possibility that a driver emerging from a driveway may have to encroach to some extent on the west bound carriage lane of South Terrace in order to see whether it was safe to pull out across the road. Consequently, a careful and prudent driver would appreciate the need to maintain a speed at or near the speed limit so that they could take evasive action if there was such an occurrence.

187 I agree with the above propositions made by Mr Hunt to the extent that an ordinary person in Mr Hunt's position would not expect somebody to pull out from a driveway across South Terrace into the path of a vehicle travelling on the carriageway. That does not mean that such an event was not reasonably foreseeable. Ordinary, safe drivers know that unexpected circumstances can occur when driving. Thus, it is dangerous to drive at an excessive speed which would not be anticipated by other road users. Driving at an excessive speed decreases a driver's ability to avoid risks to their safety and the safety of other persons and increases the risk that other drivers will make judgments, that put themselves and others in danger, on the assumption that other road users, including Mr Hunt, are driving safely.

188 To the extent that Mr Hunt's submissions suggest that fault is an independent element of the offence, he is wrong. The test is an objective one.

189 The respondent relies upon the following matters to establish that Mr Hunt's manner of driving at the time of the incident was dangerous:

(2) at and to the east of the point of impact, South Terrace runs through a residential area and there are houses and units on the southern side of the road;

(3) there are driveways on the southern side of the road which are at least partially concealed by buildings and cars parked on the southern side of the road;

(4) there is an oval and the hospital on the north side of the road;

(5) there is on-street parking on both sides of the road;

(6) South Terrace is a dual carriageway with a single lane in each direction and a median strip which is simply painted on the road. The west bound lane was bounded by cars parked on the southern side of the road;

(7) it was 10.30 pm, and whilst the area was relatively well lit, there would not have been the same visibility or depth of perception in the night time as there is in the day;

(8) drivers of vehicles entering South Terrace from a driveway or side street may misjudge and underestimate the speed of a car travelling at an excessive speed along South Terrace; and

(9) a driver of a vehicle entering South Terrace from a driveway may have to encroach on to the westbound lane of South Terrace in order to see whether South Terrace was clear. Once they have so encroached they may take a risk in pulling out so as to clear the westbound carriageway.

190 In these circumstances, it was open to the magistrate to find that Mr Hunt's action in deliberately driving the Ford to about 80 km per hour, particularly in circumstances where he knew he had been drinking, maybe affected by alcohol and he had responsibility for the safety of a number of people in his vehicle constituted driving in a manner dangerous. It exposed other persons to the real danger of injury as a consequence of Mr Hunt not having time to appreciate the behaviour of other road users and to respond to it in time to avoid or minimise risks to their safety. It also exposed other persons to the real danger of injury as a consequence of those others not appreciating that special care and action was required because of Mr Hunt's speed.

191 The gravamen of ground 2 is that the magistrate should have warned himself that, because the Getz was released and destroyed prior to either the police or Mr Hunt having the opportunity to examine it, Mr Hunt was deprived of a fair trial. In order to succeed on this ground, Mr Hunt must satisfy me that there was a requirement of law or practice which necessitated the magistrate giving himself such a warning. At [48] - [55] I have summarised Constable Callaghan's evidence about what happened to the Getz after police took custody of it at the scene of the incident.

192 It was not in dispute that whilst the police had the custody of the Ford and the Getz they did not attempt to take any measurements of either vehicle to use to attempt to estimate the speed of the vehicles at the time of the incident. Once the Getz was released to its owner and destroyed it was not possible for such measurements to be taken on behalf of either the prosecution or Mr Hunt.

193 Constable Magorian gave evidence that there were complex computer programs available which used data obtained from accidents to determine vehicle speed at the time of a collision. He testified that, in effect, these programs were not used in Western Australia because police officers were not trained to use them but that recently he had sent data overseas for such analyses to be done. His evidence was to the effect that, other than by obtaining a great deal of data concerning a collision and then using such computer programs to analyse it, it was not possible to reliably calculate vehicle speeds at the time of a collision.

194 Mr Generowicz purported to calculate the speeds of the Ford and the Getz at the time of the collision without using any computer program. His opinion as to vehicle speed at the time of the collision was rejected by the magistrate.

195 In the magistrate's reasons, the magistrate noted that the Getz had been released to its owners prior to Mr Hunt being charged and that therefore it was not available to Mr Hunt for inspection for forensic purposes after he was charged. His Honour said:

Prior to the vehicle being destroyed, police did not carry out measurements of the vehicle, such as crash profile damage. I must say that in my view, in circumstances where there has been a fatal accident, it is undesirable for a vehicle involved to be released prior to the accused being charged and without giving that person an opportunity to have the vehicle examined (ts 27/4/10, page 14).

196 Mr Hunt does not present any authority for the proposition that a trier of fact is obliged to warn themselves of the danger of convicting an accused in these circumstances. He simply asserts that given the absence of evidence of the damage to the Getz, the magistrate should have warned himself that it would be unfair and dangerous to convict him unless, after particular and careful scrutiny of the evidence and bearing in mind the warning, he was satisfied beyond reasonable doubt that Mr Hunt was driving at a speed at the relevant time which was dangerous in the circumstances.

197 Apart from well-recognised categories of special witnesses, such as accomplices and children, the law requires that in a case where the evidence of a witness may be potentially unreliable, the trier of fact must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence. No special words are required. The warning must, in clear terms, inform the trier of fact of the danger of basing a conviction on the unconfirmed evidence of the potentially unreliable witness or witnesses: Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315, 319, 323 - 325; Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 330.

198 It is evident from a reading of the above principles that they did not apply to the facts of this case. Mr Hunt's complaint is that the absence of the ability to forensically examine the Getz made it dangerous to convict him of the charge. This is a very different situation from the case where it is said that a witness' evidence is unreliable, either because of matters personal to him or her or through the effluxion of time. Mr Hunt does not suggest, and nor could he validly do so, that a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 321 type inference should have been drawn against the prosecution. The explanation for the failure to make the Getz available meant that the inference that the prosecution feared the result of adducing evidence of the examination of the Getz was not a natural inference to draw.

199 The magistrate, as is shown by the above quote from his reasons, was well aware of the potential disadvantage to Mr Hunt in not being able to examine the Getz. Further, his Honour carefully examined the evidence of the prosecution witnesses and the other evidence before drawing an adverse inference against Mr Hunt as to the commission of the offence. In these circumstances, this was not a case where as a matter of law or practice the magistrate was required to give himself the warning suggested on appeal by Mr Hunt.

200 Ground 3 is similar to ground 2 but says that the magistrate erred in not considering the failure of the police to carry out forensic testing on the Getz. In his written submissions, Mr Hunt says that the police were at 'fault' in not forensically examining the Getz in order to determine the speed of the vehicles at the time of impact and the magistrate should have taken this into account in deciding whether the prosecution had proved its case.

201 It was not suggested to the prosecution witnesses that the police had deliberately omitted to examine the Getz or had deliberately released it prematurely in order to disadvantage Mr Hunt. Further, there was no evidence before the magistrate from which he could have concluded that the police's actions in releasing the Getz were anything other than routine. It was clear from Constable Magorian's evidence that Western Australian Police do not routinely perform the sort of examination of vehicles and collect the collision data required to determine the speed of vehicles at the time of a collision through computer analysis. Apparently, the police have collected such data in only a few cases to send overseas for analysis. There was no evidence that the Western Australian police practice in this regard did not meet the standards of investigative authorities in other Australian jurisdictions.

202 In these circumstances, the magistrate did not err in failing to put any weight on the alleged 'fault' of the police in not carrying out further forensic testing on the Getz before releasing it to its owner or in failing to draw an adverse inference against the police for not carrying out further forensic testing on the Getz or in failing to give himself a special warning about the matter.

203 The magistrate was well aware that Mr Hunt had been denied the opportunity to carry out forensic testing on the Getz and that the police had not done any such testing. The magistrate could not speculate on what the evidence would have been if either the police or Mr Hunt had carried out forensic testing and it had been presented in evidence; rather he was required to determine the case on the basis of the evidence before him; Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 [13] - [14]. The absence of forensic evidence meant that the magistrate had to carefully consider the evidence before he convicted Mr Hunt. This he did.

204 Ground 4 complains that the magistrate 'placed no or insufficient weight' on the failure of the prosecution to call the taxi driver, who Mr Dowling says pulled up alongside him after the incident, and Ms CC, who Mr Galestine had apparently been visiting prior to the incident.

205 In respect of the taxi driver, Constable Callaghan testified that it was not until about September 2009 that Mr Dowling advised him of the presence of a taxi at the scene. Given that this was 10 months after the incident and given the limited, if any, value of the evidence of Mr Dowling and the fact that the taxi driver would have been in a similar position to him, this was a satisfactory explanation for the failure of the police to attempt to identify the driver and call him or her to give evidence. This was especially as Mr Dowling could not recall the name of the taxi company.

206 In these circumstances, the magistrate did not err in not placing any weight on the failure of the prosecution to call the taxi driver: Dyers [16] - [18].

207 In respect of Ms CC, she had refused to give a signed statement to the police. Notes had been made of what she had said to the police but they were not adduced in evidence and they are not before me. There is no basis on which I could conclude that Mr Hunt had been prejudiced by the failure of the prosecution to call Ms CC. In any event, I do not understand that it is alleged that Ms CC witnessed Mr Galestine's manner of driving as he drove down the driveway and out on to South Terrace or that she witnessed the incident.

208 The magistrate was advised that the police had not been able to speak to Ms CC but that they would continue to attempt to do so. His Honour was also advised that Ms CC did not wish to be involved. Mr Hunt's counsel submitted to the magistrate that he should call Ms CC but this was not pursued.

209 For the reasons given in respect to ground 2, the absence of Ms CC's evidence was not a justification for the magistrate giving himself a warning about the danger of convicting Mr Hunt or for putting less weight on the evidence of other witnesses. Ms CC was not a material witness because she did not witness either the lead up to the incident or the incident itself. In particular, she did not witness Mr Hunt's manner of driving; nor, apparently, Mr Galestine's manner of driving.

210 I have summarised Mr Generowicz's evidence and Constable Magorian's comments on it. It was the magistrate's obligation to determine what evidence he accepted and what evidence he rejected. He gave rational reasons, which I have also summarised, for rejecting Mr Generowicz's opinion of the speeds of the two vehicles. It was open for him to do so. Based on my own reading of the evidence, I concur with the magistrate's findings in this regard.

211 Mr Hunt submits that the magistrate should have had 'no difficulty' with Mr Generowicz's methodology especially in light of the fact that the magistrate accepted Mr Generowicz's assessment of the intrusion damage of the Getz and the Ford based on photographs.

212 It is correct that the magistrate accepted Mr Generowicz's assessment of the intrusion depth of the Getz and the Ford based on photographs. However, his Honour was still entitled to reject Mr Generowicz's opinion as to the speed of the vehicles at the time of impact because of the other assumptions made by him and the lack of proven facts about the vehicles on which to base an opinion as to their speed. Mr Generowicz claimed that he could make a 'reasonably well educated guess' of the speed of a vehicle involved in an accident from looking at the resulting damage. He claimed to have done this when he looked at the photographs of the Getz and the Ford. He said that when he first saw the crash photographs he estimated the closing speed of the cars to be not more than 80 km per hour. Constable Magorian, the prosecution expert, said that Mr Generowicz's methodology of looking at the damage to the cars from a photograph in order to determine speed was incorrect. He also criticised Mr Generowicz for not accurately assessing the weight of the vehicles, taking into account the stiffness coefficients of the vehicles and accurately measuring the damage profile of both vehicles. He said that it was not possible to determine the speed of the vehicles at the time of impact without including all the relevant data in the analysis.

213 It is clear from Mr Hunt's submissions that he does not accept Constable Magorian's criticisms of Mr Generowicz's analysis. However, the magistrate was entitled to accept those criticisms, which he appears to have done, and to reject Mr Generowicz's evidence.

214 From my reading of the transcript, it does not appear that Mr Hunt asked the magistrate to consider a defence of accident and nor did the magistrate do so. This is an issue which has been raised for the first time on appeal.

215 The Criminal Code s 23B states that a person is not criminally responsible for an event which occurs by accident.

216 Mr Hunt says that the event in this case was the incident itself and/or the death of Mr Galestine.

217 Whilst it is true that the general defences in the Criminal Code (WA) ch V apply to the offence of dangerous driving causing death, I do not perceive that the incident and/or the death of Mr Galestine were events to which the defence of accident in the Criminal Code s 23B could apply. This is because the charge did not require proof that Mr Hunt caused either of those events or that they were the consequences of his acts.

218 It is not always easy to determine what, if any, element of an offence involves an 'event'. But it is generally accepted that an 'event' in the context of s 23B is a reference to the consequences of the physical actions taken or failed to be taken by an accused which form an element of the offence charged: R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 38. In Falconer, Mason CJ, Brennan and McHugh JJ in joint reasons said that the defence of accident 'excludes from criminal responsibility consequences of the act which are not only unintended but unlikely and unforeseen'.

219 The difficulty with applying s 23B to either the incident or the death of Mr Galestine is that the amendments made to the offence of dangerous driving causing death in 2008, prior to this incident, mean that the prosecution no longer had to prove that an accused caused either the incident occasioning death or the death itself, or that they were the consequences of his acts. It was sufficient for the prosecution to prove that the motor vehicle driven by Mr Hunt was involved in an incident which occasioned the death of another person.

220 The inapplicability of s 23B to the charge is to some extent confirmed by the defence provided for in the Road Traffic Act s 59B(6). That is, it is a defence to the charge for an accused to prove that the death occasioned by the incident was not, relevantly, in any way attributable to the manner, which expression includes speed, in which the accused drove the motor vehicle. If the onus was on the prosecution to prove that the incident and/or the death were not events which occurred by accident, that is, that they were consequences which were not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person, it is difficult to see that s 59B(6) would have any application.

221 To put it another way, the defence of accident applies where it is necessary for the prosecution to prove that the relevant event was caused by the act of the accused or was a consequence of the act of an accused. This is not the case in respect of the offence in s 59(1)(b), as amended in 2008. However, in case I am wrong in this conclusion, I will go on and consider whether there is any merit in this ground of appeal.

222 An event occurs by accident if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person: Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, 231.

223 The magistrate accepted that Mr Hunt did not foresee the possibility of Mr Galestine pulling out from the driveway at number 79 South Terrace. However, his Honour said:

I accept that [Mr Hunt] did not know the Getz was going to pull in front of him but that is just the sort of event which is reasonably foreseeable on a road in a built-up area. There is no doubt that by pulling out of the driveway at number 79 Mr Galestine contributed in no small part to the collision (ts 27/4/10, page 30).

224 It is clear that the magistrate found that the possibility of Mr Galestine driving out in front of Mr Hunt was reasonably foreseeable by an ordinary person. It is an inevitable result of that finding that the magistrate was also of the view that it was reasonably foreseeable by an ordinary person that an accident would result as a consequence of such an action. Further, there is no doubt that it would have been foreseen by an ordinary person that as a consequence of such an accident, a death may result. It cannot be said that death from such an accident is no more than a remote and speculative possibility.

225 In respect to the application of this test, I have taken into account that the relevant test calls for a practical approach and that it is not concerned with theoretical or remote possibilities. It requires an enquiry as to what would be present in the mind of an ordinary person in the position of the accused in the circumstances with the usual limited time for assessing probabilities.

226 When assessing whether the incident and/or the death of Mr Galestine were reasonably foreseeable, it is relevant to take into account all the circumstances including the magistrate's finding as to the speed that Mr Hunt was travelling. Clearly, that speed made it more likely that an ordinary person in Mr Hunt's circumstances would have foreseen the incident and/or death occurring. I am not persuaded that the magistrate erred in concluding that an ordinary person would foresee the possibility of a person pulling out in front of them on South Terrace and, thus, a fatal accident resulting.

227 The Criminal Code s 24 says that a person who does an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as he believed to exist.

228 Mr Hunt says that he honestly and reasonably believed that whilst he was driving on South Terrace no person would pull out suddenly, dangerously and without warning from a laneway on his left into his path. He says that this was an honest and reasonable belief on the basis that:

(2) he had driven past the point of impact at the same time of night previously and in his experience it was not busy on that road;

(3) he had never had a close encounter with cars pulling out of driveways and nor had he ever heard of such a thing;

(4) he did not know that there was a black spot sign in the area;

(5) the Getz suddenly appeared in his path without warning;

(6) he was slowing for the red lights at the intersection of South Terrace and Coode Street;

(7) although he knew cars might want to come out on to South Terrace from the driveways on the southern side of the road, he would not expect them to fail to give way to cars on the carriageway; and

(8) it was reasonable for him not to consider that someone would pull out without looking or when it was unsafe to do so.

229 In effect, Mr Hunt says that he travelled at 80 km per hour at night time on South Terrace, which had a number of driveways entering it which were at least partially obscured by parked vehicles on the left-hand side of the road, under an honest and reasonable but mistaken belief that drivers would not pull out from those driveways. He says that on the basis that his belief was the 'real state of things', that is, that somebody would not pull out in front of him, then he would not be criminally responsible because of the defence of accident. Thus, he should not have been found guilty.

230 For the reasons I have given with respect to ground 7, I am not of the view that the defence of accident applied to this charge. If I am wrong in that regard, I am of the view that the magistrate's findings as to the reasonable foreseeability of Mr Galestine's actions inevitably mean that the magistrate found that any such belief held by Mr Hunt was not reasonable.

231 Another way of looking at the application of mistake of fact is that Mr Hunt drove at a speed of 80 km per hour along South Terrace under an honest and reasonable but mistaken belief that there was no, and would be no, vehicle which crossed his path. On this basis he would say that his driving was not objectively dangerous.

232 The fallacy with this analysis is that the test as to whether driving is dangerous is an objective one. It requires a consideration as to whether an ordinary reasonable person would find the manner of driving 'in reality, and not speculatively, to be dangerous to the public or another person'. Dicta from cases such as Coventry and McBride to the effect that the standard is impersonal and does not vary with individuals, that an accused may honestly believe that he was driving very carefully, and yet may be guilty of driving in a manner which is dangerous to the public, and that it is the fact of danger to the public in the manner of driving, whether realised by the accused or not, which makes it dangerous within the meaning of the section, indicates that once a determination is made that an accused was driving in a manner which was dangerous to the public, there is little, if any, room for the application of s 24. This is because s 24 requires the accused's belief to be both honest and reasonable. It is unlikely that it could be said that an accused's belief in a state of things was reasonable if that state of things was contrary to the circumstances which the court had found rendered the accused's driving to be dangerous to the public.

233 In this case, the magistrate found that given the foreseeability of other drivers doing unexpected things on the roadways, such as pulling out from driveways, Mr Hunt's manner of driving was dangerous. In these circumstances, it could not be said that Mr Hunt's belief that other drivers would not behave in such a manner was a reasonable belief. The mere fact that no one had pulled out in front of him in the past in this area, did not make a belief that an incident of that kind would not happen on this evening, a reasonable belief.

234 I have already dealt with the gravamen of ground 13 when dealing with ground 1. I accept the magistrate implicitly found that Mr Hunt was driving at approximately 80 km per hour at the time of the incident. For the reasons which I expressed under ground 1, I am of the view that having regard to all the circumstances it was open for the magistrate to find that Mr Hunt's manner of driving was dangerous to the public.

235 It was open on the facts of this case for the magistrate to determine that Mr Galestine's act in pulling out of the driveway was 'the sort of event' which was reasonably foreseeable on a road in a built-up area. The magistrate did not find that the actual act of Mr Galestine pulling out from the driveway of number 79 was foreseeable. Neither was he required to do so.

236 For practical reasons, I have dealt with this ground last as it relates to the defence in the Road Traffic Act s 59B(6).

237 For an accused to be found not guilty of an offence under s 59 by virtue of s 59B(6), the accused must, relevantly, prove on the balance of probabilities that the death, occasioned by the incident, was not in any way attributable to the manner in which the accused was driving the motor vehicle.

238 By including the phrase, 'in any way', in the subsection it is apparent that Parliament intended that an accused must satisfy the court on the balance of probabilities that his or her manner of driving did not in any way, that is, to any extent, contribute to the relevant death.

239 In this case, Mr Hunt had to prove on the balance of probabilities that the death of Mr Galestine was not in any way attributable to his manner of driving. Even though there were factors in this case which led the magistrate to conclude that Mr Galestine had contributed to the incident in no small part by pulling out of the driveway and 'to a considerable degree' contributed to his own death, the evidence still fell short of persuading the magistrate on the balance of probabilities that the death of Mr Galestine was 'not in any way attributable' to Mr Hunt's manner of driving.

240 Mr Hunt points out that the magistrate found that the greater the speed on impact the more severe the damage to the vehicle would be and the greater the prospect of serious injury or death to an occupant in the vehicle that is hit. Yet, he says that Constable Magorian said, in effect, that the amount of damage done in an accident depended on a number of variables, not just speed (ts 23/3/10, page 88). Mr Hunt says that the magistrate's view was, in effect, described by Constable Magorian as a 'layman's view' and that he said that the opposite can be the case.

241 I do not read Constable Magorian's evidence as contradicting the opinion of the magistrate. Constable Magorian expressed a view that it was not possible to say from looking at the amount of damage done to motor vehicles in an accident that the greater the damage the greater the speed of the vehicles at the time of collision. He was not commenting directly on the proposition that the greater the speed on impact the more severe the damage to the vehicle is likely to be.

242 Even if his evidence did contradict the magistrate's finding, it certainly does not contradict the magistrate's more important finding that the greater the speed on impact the greater the prospect of serious injury or death to an occupant in the vehicle that is hit. This is a matter of common sense and I see nothing in the evidence which rendered it a finding that the magistrate was not entitled to make.

243 For the reasons which I have given in respect of each ground of appeal, I would not allow the appeal against conviction.

244 In my opinion, the magistrate's reasons for sentence disclose three discrete errors. These errors mean that the appeal against sentence should be allowed and I should proceed to re-sentence Mr Hunt. Thus, it is unnecessary for me to separately consider each ground of appeal against sentence.

245 The first error I note is that the magistrate said that:

Although it cannot be said that your manner of driving was the sole cause of the accident, clearly it was a major contributing factor (ts 27/5/10, page 12).

246 The magistrate found that Mr Galestine had pulled out in front of Mr Hunt's vehicle and had thereby contributed to the incident. He was not able to find the respective positions of the Ford and the Getz at the time Mr Galestine pulled out. Neither was he able to make a finding as to the speed of the Getz at the time it did so. In these circumstances, it was not open to the magistrate to find that Mr Hunt's manner of driving 'was a major contributing factor' to the incident.

247 Secondly, after finding that Mr Hunt on the evening in question was irresponsible and had little regard to the road rules or to other road users, as he was entitled to do, his Honour went on to find that 'the result in loss of life would be devastating for any family'. The inference from this comment is that the magistrate found that Mr Hunt's manner of driving had resulted in, that is, caused, the death of Mr Galestine.

248 Given the circumstances of this case, it was not open to the magistrate to find that Mr Hunt's manner of driving had resulted in or caused the death of Mr Galestine. It was not an element of the offence that Mr Hunt's manner of driving had to have resulted in or caused the death of Mr Galestine. I have made this point earlier in these reasons. It was proved that Mr Hunt was driving the Ford which was involved in an incident which occasioned the death of Mr Galestine. It is the incident which caused the death of Mr Galestine. It is simply a circumstance that Mr Hunt's vehicle was involved in that incident. The other matter proved by the evidence was that at the time of the incident Mr Hunt was driving in a manner that was dangerous. The offence did not require proof that Mr Hunt's manner of driving or general attitude towards his responsibilities as a driver resulted in or caused the death of Mr Galestine. As I have said, on the facts of this case that was not proved.

249 Thirdly, the magistrate referred to comments by the Court of Appeal to the effect that a term of imprisonment is the appropriate penalty for this offence. Those comments seem to me to have been made about the appropriate sentencing disposition for offences of dangerous driving causing death prior to the 2008 amendments to the charge.

250 The 2008 amendments significantly altered the elements of the offence and mean that the offence now includes conduct which would have previously fallen below the standard of seriousness required for proof of the offence before those amendments. Prior to the 2008 amendments, the prosecution had to prove that there was a causal link between the dangerous driving and the death the subject of the charge. Now, it is necessary to prove only that the death resulted from an incident involving dangerous driving regardless of whether it was or was not caused by the dangerous driving. Offences, such as the one committed by Mr Hunt, where the court is unable to find that the death was caused by the dangerous driving would not have resulted in a conviction under s 59 prior to the amendments to the Act. Thus, principles of sentencing which applied to the offence prior to the amendments should be applied with caution to offences such as Mr Hunt's. In this respect I refer to Steytler P's comments in Gibbs where his Honour said:

I have said that the amendment relieving the prosecution of the obligation to prove causation is significant. I have also said that it is enough, now, for the prosecution to prove that the offender was involved, in the circumstances posited, in an incident occasioning the death of, or grievous bodily harm to, another person. This change seems to me to bring about a fundamental alteration to the elements of the offence that are required to be proved. An offence in respect of which it is necessary to prove that the death or grievous bodily harm resulting from an incident was caused by dangerous driving seems to me to be very different from one in which it is necessary to prove only that the death or grievous bodily harm resulted from an incident involving dangerous driving (or driving under the influence) regardless of whether it was or was not caused by the dangerous driving (or the fact that the driver was under the influence). That conclusion is not altered by the fact that the person charged is afforded a defence by s 59B(6) if that person is able to prove that the death or grievous bodily harm was not 'in any way attributable' to either of the factors identified. There might be cases in which the evidence is inconclusive one way or the other. Whereas, formally, that situation would have necessitated an acquittal, now it will result in a conviction.

The position is starkly illustrated by the second reading speech in respect of the amending Act made by the then Attorney General, Mr Jim McGinty (Western Australia, Parliamentary Debates, Legislative Assembly, Wednesday 23 June 2004, 4,184 - 4,185):

'The amendments to the Road Traffic Act 1974 contained within this Bill aim to address deficiencies in the law relating to dangerous driving causing death or serious injury. The deficiencies in the law were highlighted by the very sad death in August last year of Miss Jess Meehan, a 10-year-old girl. Jess Meehan died on 8 August 2003 after being hit by a car driven by an unlicensed and drunken driver. The police subsequently charged the driver with driving under the influence of alcohol and driving whilst under suspension and without a valid licence, and the minimum fine was imposed. The police took the view that a more serious charge, such as dangerous driving causing death, contrary to s 59 of the Road Traffic Act, could not be sustained upon the available evidence. Because of the deficiencies in s 59 of the Road Traffic Act, in particular, its requirement for a causative nexus to be established between the driver's intoxication and the collision causing death, the penalties imposed upon the driver involved in the incident that took Jess Meehan's life failed to address the true seriousness of his conduct. Justice was not served.'

Those comments apply as much to dangerous driving as they do to driving under the influence [29] - [30].

251 Given these errors, the appeal against sentence should be allowed and I should re-sentence Mr Hunt.

252 In determining what would be the appropriate sentence for Mr Hunt, I have had regard to a number of authorities referred to by the parties. In particular, I have had regard to Taylor v The State of Western Australia [2009] WASCA 226. In Taylor, the offender was convicted after trial of one count of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm. He appealed against his sentence of 26 months' imprisonment for the offence of dangerous driving occasioning death. The offender was a young man with good antecedents who was remorseful for his offending. He had agreed to race another vehicle on a wet road. He reached speeds of up to 120 km per hour in an 80 km per hour speed zone but at the time of the accident he was travelling at about 90 km per hour. The vehicles briefly came into contact and each driver lost control and crashed. The offender's passenger died in the accident and the other driver was severely injured. The offender had not been drinking.

253 The Court of Appeal found that having regard to other cases of dangerous driving, the offender's driving could not be characterised as being of the most serious kind or even towards the upper end of the range of possible dangerous driving. That fact, coupled with the personal circumstances of the offender, satisfied the court that the sentence imposed was manifestly excessive. The court substituted a sentence of 1 year and 8 months' imprisonment to be served concurrently with the sentence of 14 months' imprisonment for the offence of dangerous driving causing grievous bodily harm to the driver of the other vehicle.

254 Mr Hunt submits that the conduct of the offender in Taylor was more serious than his case because in the other case both vehicles were racing one another and the offender had reached speeds of up to 120 km per hour in an 80 km per hour speed zone.

255 In my view, there are more similarities than dissimilarities between this case and Taylor. Both cases involved young offenders with good antecedents who pleaded not guilty to the offence of dangerous driving occasioning death, but whom were remorseful for the death caused by the incident in which they were involved. Neither case involved momentary inattention, but rather involved a deliberate decision on behalf of the offender to speed greatly in excess of the applicable speed limit. However, in both cases, by the time the relevant incident occurred, they had reduced their speed to some extent. In Taylor's favour, he had slowed his vehicle to something in the region of 10 km per hour over the speed limit. However, Mr Hunt was still travelling at least about 20 km per hour over the speed limit and the speed limit was substantially less than it was in Taylor.

256 Thus, there are similarities in the seriousness of each offence although, in considering the seriousness of Taylor's offending, the Court of Appeal noted that no alcohol was involved and the period of bad driving, although deliberate, was extremely brief. Neither of these factors can be said to mitigate Mr Hunt's offending. On the other hand, Taylor had agreed to race another vehicle and knew that he was speeding with that car close by.

257 In terms of the seriousness of Mr Hunt's offence, an offence of dangerous driving occasioning the death of another person is always a serious offence. In noting that, the magistrate made no error. This was not a case where the incident resulted from momentary inattention or misjudgment. Mr Hunt made a deliberate decision to put his and others' safety at risk by driving at a speed greatly in excess of the speed limit in a built-up area at night time. He made this decision when he knew he had been drinking alcohol and he should have known that his judgment may have been thereby impaired. However, compared to other cases of dangerous driving and having regard to the fact that it could not be said that Mr Hunt's dangerous driving caused the death of Mr Galestine, the offence was at the lower end of the range of seriousness for offences of this type.

258 On appeal, his counsel made a submission to the effect that Mr Hunt's driving was not dangerous and he was only doing what many people do. The submission has been rejected. To the extent that it reflects an opinion held by some people, it is necessary for the courts to send a message to the community that such behaviour is not acceptable and will be met by deterrent penalties.

259 Even taking into account Mr Hunt's favourable antecedents and all the circumstances of the offence, in my view a sentence of 18 months' imprisonment is an appropriate sentence.

260 I must now decide whether it is appropriate to suspend that sentence. Within the statutory limitations, my discretion to suspend a sentence of imprisonment is expressed in very wide language. After considering all the relevant circumstances I am of the opinion that the sentence should be suspended.

261 The seriousness of the offence and general deterrence are very important factors but I must have, and have also had, regard, amongst other things, to Mr Hunt's rehabilitation. As he is a first offender, I should take into account the likelihood that he is likely to benefit from an exercise of clemency. In the longer term this will be to the ultimate benefit of the general public: Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289 [28] and the cases there cited.

262 I have also had regard to the nature of the case presented against Mr Hunt. That is, the prosecution relied solely on speed to prove that Mr Hunt's manner of driving was dangerous and the prosecution could not prove that Mr Hunt's speed caused Mr Galestine's death. The magistrate also found that Mr Galestine pulled out in front of Mr Hunt and that the position of Mr Galestine's Getz was a significant cause of the incident.

263 The sentence of 18 months' imprisonment ought to be suspended for a period of two years. Unlike the Magistrates Court, I can place conditions on the suspended sentence. I will hear the parties as to whether there are conditions which ought to be imposed.