Isidoro v May [2000] WASCA 152

Brickwood v Phillips (1990) 13 MVR 513

Geneff v Townshend [1970] WAR 20

Laitt v Magden (1992) 16 MVR 72

McBride v R [1966] HCA 22; [1966] 115 CLR 44

McLuckie v Williams (1995) 22 MVR 265

Morton v Bevis (1993) 19 MVR 181

1 MILLER J: The respondent was charged in the Court of Petty Sessions, Albany with the offence of dangerous driving causing bodily harm. It was alleged that on 15 January 1999 at Albany he had driven a motor vehicle on Albany Highway in a manner that was, having regard to all the circumstances, dangerous to the public or to any person and had thereby caused bodily harm to one Paul Richard Davies. The case came before Mr R M McM Glynn SM in the Court of Petty Sessions at Albany on 24 January 2000 when the respondent pleaded not guilty. The prosecution case against him consisted primarily of the evidence of Mr Davies, who testified that about 12.20pm on 15 January he was travelling north on the Albany Highway, having just rounded the roundabout at the top of York Street. He was riding a Suzuki road/trail bike and he said that after coming off the roundabout he was in the right-hand lane of Albany Highway where he crossed a speed hump at a speed of about 35kmh and then travelled on along Albany Highway with a view to crossing into the left-hand lane to pull into the carpark of a dental surgery. He observed a blue utility in front of him in the left-hand lane travelling at about the same speed as he was and he was in the process of slowing down to change lanes when the next thing he knew there was a car right in front of him. He tried to turn to the right to avoid it but was unable to do so. According to his evidence he had then travelled about 60 metres from the roundabout. There was no dispute that Mr Davies suffered bodily harm as he was thrown across the bonnet of the vehicle and landed on his right-hand side, fracturing his left femur and suffering other injuries.

2 When questioned about the speed at which he was travelling Davies testified that he had "accelerated off the roundabout" but then "steadied off because there's a speed hump ... take it too fast you're going to come off". He said that he was in third gear and travelling at 35kmh. When asked about the engine noise of his motorcycle he indicated that it was simply "normal". In the course of cross-examination by counsel for the respondent it was put to Davies that he was travelling a lot faster than he had indicated, but this he denied, contending that his motorcycle was "not big enough and the road is not suitable". There was some question as to whether or not the motorcycle ridden by Davies had left a skidmark, but nothing really turns on that issue.

3 The prosecution called an independent witness, Sally Ann Malone. She said that on the day in question she had left a doctor's surgery and walked towards Coles (about 10 metres or so) from where she went to cross the roadway. She looked both ways and in the course of so doing, observed what she described as a small dark coloured trail bike hit a white coloured car, sending the rider over the bonnet landing on the roadway on the other side. She was asked whether she had noticed anything about the speed of the motorcycle and her answer was that she didn't hear any "like high revs or anything". She said she had been a motorcyclist herself for some 20 years and she thought that had the motorcycle been doing anything radical it would have caught her attention. To the contrary, she said it was not making a lot of noise and she made the observation that with the distance the motorcycle had come from the roundabout, "he would have still been in low gear". When asked the leading question whether she was adamant that she did not hear any excessive noise, she responded that she was.

4 Two police officers gave evidence to the prosecution. One of them was Senior Constable Anthony John George, who was an experienced motorcyclist and who expressed the opinion that with the type of motorcycle being ridden by the respondent, it was unlikely that it could have exceeded the speed limit by the time it had reached the point where the impact occurred. According to the Constable, the rider would "have to thrash it to get to that point". I doubt that this evidence was admissible, but no objection was taken to it.

5 The respondent gave evidence that on the day in question he had been at a BP service station on the western side of Albany Highway. He intended to make a right-hand turn across the two north-bound lanes of Albany Highway to travel south and head into town. He observed a vehicle make a right-hand turn into the service station (a vehicle which had been travelling south and which was required to turn through a break in the median strip and cross the two north-bound lanes of Albany Highway) and he then went behind it. He testified that as he proceeded into the middle turning lane (a slip-lane alongside the median strip for north-bound traffic on Albany Highway) he saw a flash out of the corner of his eye and a bike hit him. The point of impact was more or less where the vehicle came to a stop as depicted in photographs. Those photographs revealed the rear of the vehicle to take up about three-quarters of the right-hand north-bound lane, with the front of the vehicle in what was termed the "turning lane". When cross-examined, the respondent made it clear that he had looked and the two north-bound lanes were clear when he pulled out from the service station. He said he did not see the motorcycle. He stated that he looked to the right before commencing to drive across the roadway, then looked left, then looked back to the right, then proceeded out because he knew that the roadway was clear. The following passage from the transcript sets out his version of what occurred.

"PROSECUTOR: No, before you hit him - before the accident --? --- Yeah, okay. We'll go through it again. When I pulled out from the service station -- before I pulled out I looked right.

Yes? --- I started to pull out. I was moving. I looked right again then I started looking left again because I arrived at that position.

Even when you turned right when you're driving across the road you didn't see him? --- I did not see that motorbike."

When asked whether he had heard the sound of a motorcycle approaching, the respondent answered that he had not and that he had all windows up with the radio working so that he would not be in a position to hear a motorcycle.

6 The respondent called two independent witnesses. One was Trevor Robert Addiss, who testified that he was a pedestrian in Albany Highway and crossing from east to west to go to the ANZ Bank. The position of the ANZ Bank is shown in photographs tendered at the hearing and was closer to the roundabout than it was the BP station from which the respondent had exited. Addiss stated that he had crossed the highway to the middle island where he stopped to make sure there was nothing coming. He then went to proceed across the north-bound lanes of the highway when he observed "a bike come very fast around the corner. I had to step back very quickly otherwise I would have been hit". He stated that before he had begun to cross the north-bound lanes he looked to see if the way was clear and it had been. It was only after he started to walk that he saw a motorcycle coming. It was the speed of the motorcycle and the "screaming sound" of it that caused him to jump back quickly. Addiss estimated the speed of the motorcycle as being "well in excess of the speed limit" which was 60kmh. He heard the sound of the collision and then went to the scene. He was cross-examined by the prosecuting Sergeant in relation to his estimate of speed and when it was put to him that the motorcycle could not have reached a speed of 60kmh at the point where he saw it, he disagreed. Jennifer Brown testified that she had been crossing Albany Highway at or about the position of the Hacienda chemist shop which was to the south of Coles but quite close to the scene of the ultimate collision. She crossed the south-bound lanes of Albany Highway and reached the median strip where she looked to her left. She said "I didn't see anything coming so I put my foot off the island onto the road ... then I heard a revving - a motor bike revving. I looked and I thought 'I don't want to walk out in front, it's a little bit fast for me' so I stepped back onto the island". The motorcycle then passed her and after it had done so she heard a bang and turned just in time to see a person going over the bonnet of a car. When asked to estimate the speed of the motorcycle she was unable to do so, although stating that she thought it was "a little fast for me to step out in front of". In cross-examination she noted that the sound of the motorcycle was as if it was "on the throttle".

7 Faced with this evidence the learned Magistrate expressed the view that "on the face of it", when viewed objectively, the respondent's driving was dangerous. However, reference to various authorities cited to the learned Magistrate led him to the view that this was not the complete answer to the case. His Worship considered the issue before him was not whether objectively viewed the actual driving constituted a situation that was dangerous and was therefore dangerous, but whether or not the respondent was at fault. After reviewing the events the learned Magistrate pointed out that the respondent had clearly looked but had not seen the motorcycle and there were a number of possible explanations for that. One was that he had looked and the motorcycle was there but he did not see it. Another was that he had looked and it was not there, but in the period of time between the last occasion when he looked to the right and the collision it came from somewhere and collided with his vehicle. Although the learned Magistrate said there was no evidence as to how far the motorcycle had travelled, the motorcyclist had in fact stated that he travelled 60 metres and that evidence was not challenged.

8 The learned Magistrate rightly pointed out that he had two bodies of evidence before him which were obviously inconsistent. If the evidence of Davies was correct, he was not going fast enough to have not been seen by the respondent. If, on the other hand, the respondent's evidence was correct, Davies "surely must have been going faster than he says". The learned Magistrate then looked for what evidence there was as to how the motorcyclist had been observed by others. He made reference to the evidence of Ms Malone and noted that she had said that there was nothing radical in the way in which the motorcycle was travelling. His Worship also made reference to the evidence of the police officers and then to the two independent witnesses called by the respondent. As to the evidence of Addiss, his Worship expressed some reservations about the judgment of speed which he had given and said that the best that could be said about his evidence was that he heard the motorcycle (which being a two-stroke motorcycle would be likely to make a "terrible noise") and had looked and seen it coming, but his Worship pointed out that Addiss had "looked before and it wasn't there and that's critical. That's the critical piece of evidence. He looked. There was no motorcycle. He went to proceed. He heard the noise. He looked around. He saw the motorcycle." The learned Magistrate then made reference to the evidence of Ms Brown, whom he noted to have been significantly closer to the accident scene than Addiss. As to her evidence, he noted that she had said that "nothing was coming. She had judged it safe to proceed so there's nothing coming at all. She's going to proceed ... and stepped out, heard a motorcycle revving, looked and saw the motorcycle coming, judged that it was coming a bit too fast for it to be safe for her to cross so she stepped back and the motorcycle passed her". The learned Magistrate pointed out that Ms Brown had emphasised that the motorcycle was not there when she looked the first time, so much so that she stepped out onto the roadway but then, having heard it, she looked, saw it and stepped back.

9 The learned Magistrate then stated that it was for the prosecution to prove beyond reasonable doubt that either the respondent saw the motorcycle coming but nonetheless proceeded, or alternatively and more likely, should have been the motorcycle coming but didn't in circumstances where a reasonably prudent driver would have seen it. His Worship then pointed out that the respondent had said that he did not see the motorcycle, notwithstanding that he looked twice to his right. Further, the witness Addiss said that he had looked and did not see it and then was suddenly confronted by it, and the witness Brown said that she looked and didn't see it and was suddenly confronted by it. This, said the learned Magistrate, was precisely what the respondent said had happened to him, "that he looked, it wasn't there, he looked again, there was nothing there, he proceeded on and was suddenly confronted by it". His Worship said that "that can happen in the circumstances if the motorcycle was travelling significantly faster than is alleged". The ultimate conclusion reached by the learned Magistrate was in the following terms:

"He has to exercise the standard of observation to be made by the reasonably prudent driver. If a reasonably prudent driver wouldn't see the motorcycle coming then he's not obliged to see the motorcycle coming. He had a clear road. He drove out across two clear lanes and the motorcycle came from nowhere. It does happen. Richardson v Price establishes that the courts allow that to happen. They allow for that sort of situation to exist.

You can end up being very suspicious about whether or not the defendant made proper observations, but confronted with the evidence of the other two witnesses who initially didn't see the motorcycle and were then confronted by it, I'm not prepared to say that the prosecution has satisfied me beyond reasonable doubt that this defendant should have seen it and accordingly was at fault. On that basis the charge is not proved. It's dismissed."

10 The respondent was granted leave to appeal from the decision of the learned Magistrate on two grounds:

(a) The learned Magistrate erred in law and in fact in holding that the respondent (defendant) did not drive his vehicle in a manner that was in all the circumstances dangerous to the public; and

(b) The learned Magistrate erred in law and in fact in drawing the inference from the evidence before him that a prudent driver in the position of the respondent (defendant) would not have seen the motorcyclist.

Ms Johnson, counsel for the respondent, has argued that the driving of the respondent would be dangerous for the purposes of s 59A of the Road Traffic Act 1975 if in reality, and not speculatively, it was actually or potentially dangerous to the public or another person. As she said, it is an objective test which involves some element of fault on the part of the driver. That formulation of the test is taken from Kaighin v The Queen (1990) 1 WAR 390 at 395 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;

(a) An offence is committed under s 59(1) when a person drives a motor vehicle in a manner dangerous to the public and thereby causes death or grievous bodily harm (ie there is a causal link between the dangerous driving and the death or grievous bodily harm).

(b) Negligence is not an element of dangerous driving; negligent driving is not necessarily dangerous driving; thus failure to keep a proper look out 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."

11 Reference was also made to the statement of Murray J at 10 in Becker v Roberts, unreported; SCt of WA; Library No 970686; 12 December 1997 in which his Honour made the point that although the test is an objective one, it is a test to be judged "from the point of view of the defendant and what that driver knew or reasonably ought to have known of the presence of another vehicle ...". In the same case (at 8), Murray J made reference to the test in these terms:

"... although the test to be applied under the section is undoubtedly an objective one, it is, as Jackson CJ made clear in Smith, a matter to be judged objectively from the point of view of the defendant and what he or she knew or ought to have known about the surrounding circumstances in relation to which the quality of the driving and the element of fault is to be judged. It was necessary to discuss this aspect in Morton v Bevis (1993) 19 MVR 181, a case which I thought was properly to be regarded as one of a real potential danger to others in the vicinity of the road, rather than a case of actual danger. At 184 I said:

'The question is not one of causation in the sense that the court is looking for a causal link in fact between the driving and the potential danger to the public or any person. The question is the objective evaluation of the quality of the driving as it was performed in all the surrounding circumstances so as to answer the question whether the necessary dangerousness with its attendant element of fault on the part of the driver is established. It does not matter, I think, that those said to be potentially endangered by the driving might be so endangered because there is a substantial risk that they might behave carelessly, inadvertently, or even grossly negligent of their own safety.

It must, of course, always be borne in mind that what one is concerned with is the objective evaluation of the quality of the driving, but the relevant circumstances will be those applicable at the time which were, or ought reasonably to have been known to or anticipated by the defendant. The question will be whether there was a real potential danger arising out of a substantial possibility of injury to persons who might reasonably be expected to come upon the road. The relevant quality of the driving is to be judged by having regard to the particular situation and knowledge of the driver in determining what are the material circumstances in which the driving occurs, and by considering whether any reasonable person in the position of the driver would recognise the danger arising out of the appreciable risk of injury to other persons.' "

12 Ms Johnson's essential submission was that as the learned Magistrate had not found as a fact that the motorcyclist was speeding or that there was any curve in the roadway obstructing the respondent's view, the question was what the respondent might reasonably be expected to have seen or anticipated, not what he had in fact seen or anticipated. Her submission was that the only reasonable inference open to the learned Magistrate from the fact that the respondent failed to see the motorcyclist was that he did not keep a proper lookout. Reliance was placed upon McDiven v Paull (1990) 12 MVR 225 where Walsh J concluded in similar circumstances that a defendant had, in failing to see a motorcyclist, failed to keep a proper lookout and in such circumstances which imbued his manner of driving with the dangerous quality required to constitute an offence under the section.

13 Counsel for the respondent argued that the learned Magistrate had properly considered that there was evidence other than that of the respondent of the "sudden advent or appearance of the Davies' motorcycle on the scene" which was consistent with the evidence of the respondent and suggested that the motorcyclist may have been travelling significantly faster than he was prepared to concede in his evidence. Counsel for the respondent submitted that in all the circumstances there was significant evidence of fault on the part of Davies which was relevant to whether fault on the part of the respondent was demonstrated. The learned Magistrate's failure to be persuaded to the required standard of proof that the prosecution had demonstrated fault on the part of the respondent was supported as (it was argued) the learned Magistrate had given due regard to the standard of care of a reasonable and prudent driver and appropriately applied the test of whether such a driver in the position of the respondent ought to have seen the motorcycle.

14 In the absence of the evidence of the two independent witnesses Addiss and Brown, there would be little doubt that the prosecution would have succeeded in this case. However, it seems to me that the learned Magistrate thought that what might otherwise have been a straightforward and prima facie case of dangerous driving on the part of the respondent was thrown into doubt by reason of the evidence of these two witnesses. His Worship held that because each of Addiss and Brown had first looked before attempting to cross the roadway and not seen the motorcycle, but then looked again and seen it, it was reasonable to conclude that the respondent had been placed in the same position. Although not reaching a conclusion that the motorcyclist had been travelling at any particular speed, it is clear that the learned Magistrate was impressed by the fact that each of these independent witnesses was of the view that the motorcycle was travelling so quickly towards them that they had to step back from the roadway to avoid a collision. His Worship took the view that confronted with the evidence of these two witnesses who initially did not see the motorcycle and who were then "confronted by it", he was not prepared to say that the prosecution had satisfied him beyond reasonable doubt that the respondent should have seen it. It was for this reason that his Worship was unable to conclude that the respondent was at fault.

15 In my view it was open to the learned Magistrate to reach the conclusion that he did. He carefully reviewed the evidence of all witnesses and effectively came to the conclusion that the evidence of Addiss and Brown left him with a reasonable doubt as to whether the respondent should have seen the motorcycle approaching on Albany Highway prior to attempting to cross the north-bound carriageway. That was the correct process of reasoning, as Anderson J pointed out in Harling v The Queen (1997) 94 A Crim R 437 at 443:

"A finding of guilt is not to be reached simply by rejecting the case put forward by the defendant. There cannot be a guilty verdict unless the court of trial accepts, that is actually and positively believes to the required standard, the evidence presented by the prosecution on matters critical to proof of guilt. When a defendant gives exculpatory evidence, and it is trite to say that he or she need not do so, the question is not so much whether it is to be preferred to the prosecution evidence but whether in the light of it the prosecution has proved its case. Even if the Court does not positively believe the defendant's evidence and in that sense does not prefer it, the question remains whether on the whole of the evidence the guilt of the defendant has been proved beyond a reasonable doubt. This is not a mere exercise in semantics. There is always a real possibility that whilst the evidence of the prosecution witnesses may be generally preferred to that of the defence witnesses, the evidence as a whole still leaves a reasonable doubt as to the guilt of the defendant. For example, a defendant may give an account which sounds implausible and unlikely, yet the Court may be unable to rule it out. The defendant may not go into evidence at all, yet the prosecution evidence may fail to satisfy the Court to the required degree."

16 In these circumstances it would, in my view, be wrong to interfere with the conclusion reached by the learned Magistrate. The evidence of the two independent witnesses clearly troubled him and left him on the totality of the case with a reasonable doubt as to the guilt of the respondent. That conclusion should not, in my view, be disturbed. For these reasons I would dismiss the appeal.