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[2009] WASC 106
appellant. Appeal allowed. Each conviction for dangerous driving occasioning bodily harm was set aside: [41].
The Supreme Court set aside Lyford's two convictions because the evidence did not exclude a reasonable possibility that he could not see or identify the obscured intersection early enough to stop. The case restates that dangerous driving requires more than a failure to take due care: the manner of driving must expose the public to an additional, real risk. The Court accepted that stopping could have been necessary to give way at this particular intersection, but found that the prosecution had not proved beyond reasonable doubt that Lyford had a sufficient opportunity to recognise the danger and respond.
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In Lyford v Wride [2009] WASC 106, the Supreme Court of Western Australia considered an appeal by Maurice Hodgson Lyford from two convictions for dangerous driving occasioning bodily harm under s 59A(1)(b) of the (WA). Blaxell J heard the appeal on 6 February 2009 and delivered judgment on 30 April 2009. The appeal followed a trial before Magistrate Wilson in the Magistrates Court at Midland [1].
2 cited instruments linked from this judgment.
The charges arose from a collision on 17 December 2006 at the intersection of Haddrill and Campersic Roads in Baskerville. Lyford was driving a Mercedes east along Haddrill Road. John Cusato was driving a Ford north along Campersic Road, which had right of way. Two passengers in the Ford suffered bodily harm [2], [6]. The weather was sunny. The speed limit was 70 km/h on Haddrill Road and 80 km/h on Campersic Road. The evidence was that Lyford had been travelling at about 60 to 65 km/h and slowed to about 40 to 50 km/h as he entered the intersection. Cusato was travelling at or about the speed limit [7].
The intersection was difficult to identify from a distance. Heavy vegetation on its south-western corner obstructed Lyford's view of traffic approaching from his right. He did not have an opportunity to see the Ford until he was about 6 to 10 metres from the edge of Campersic Road's sealed surface [8]. The intersection also had design and visibility problems. The evidence accepted by the Magistrate included that the road alignment could mislead drivers about the edge of Campersic Road, the intersection could appear camouflaged, a rise in the road reduced its visibility, the give-way sign blended into the background, and the faded line was difficult to see until close to it [9], [23]-[24].
The Magistrate found that Lyford had seen the give-way sign and the intersection as he approached. His Honour also found that Lyford knew, or should reasonably have known, that his view to the right was obstructed and that he could not tell whether traffic was approaching. The Magistrate concluded that Lyford should have stopped at the give-way sign, but instead entered at 40 to 50 km/h without knowing whether another vehicle was approaching [26]-[29]. He was convicted on both charges.
On appeal, the central dispute was not simply whether stopping would have avoided the collision. It was whether the evidence proved that Lyford had noticed the intersection and understood the visibility problem early enough to stop. Blaxell J held that the evidence did not exclude a reasonable inference that Lyford could not reasonably have observed the intersection until it was too late to stop [31]-[38]. The appeal was allowed and both convictions were set aside [41].
Blaxell J began with the distinction between careless driving and dangerous driving. Section 59A(1)(b) required that the vehicle be driven “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” [17]. The judgment relied on McBride v The Queen for the proposition that the manner of driving must have a quality that makes it potentially dangerous in a real sense, either inherently or because of the particular circumstances. There must be an actual potentiality of danger in fact [18].
The judgment then referred to Jiminez v The Queen, as quoted in McPherson v Lucas. A mere failure to drive with due care and attention, even if it causes bodily harm, does not by itself establish dangerous driving. There must be a feature of the driving that subjects the public to a risk beyond the ordinary risks of driving, including the risks associated with occasional driving without due care [19]. Where the allegation rests on inattention, the inattention must be sufficiently serious to amount to danger in that sense [20].
The court described a two-stage approach. First, the fact-finder must identify what the driver actually did. Whether the driver looked for oncoming traffic is part of the manner of driving and relevant to that factual inquiry. Second, the court makes an objective assessment of whether that manner of driving was dangerous, having regard to what the driver knew or ought reasonably to have known in all the circumstances [21]-[22].
The appeal turned on the evidence supporting the Magistrate's factual inferences. The Magistrate found that Lyford had noticed the intersection and give-way sign, but had not made a particular finding about how far away he was when he first noticed them. Blaxell J considered that timing critical because the question was whether Lyford had enough distance to react and avoid the collision [30]-[31].
Lyford was found to be honest but vague and at times reliant on assumption or hindsight. There was no direct evidence that he had recognised the intersection and the obstruction early enough to stop [25], [32]-[34]. His post-collision statement that he looked right and left before proceeding could not be treated as an admission that he had enough time to stop. The evidence placed those actions in the final moments before the collision, within perhaps 10 metres, while the vehicles were moving at 40 to 50 km/h [34].
The Magistrate inferred that Lyford knew for a considerable distance that he could not see to his right and would not be able to assess approaching traffic until within 10 metres of the give-way line. Blaxell J held that the evidence could not support that specific inference. Before Lyford reached the intersection, there was no basis to infer that he knew he would only obtain a clear view in the last 10 metres [35]-[36].
There was a reasonable alternative explanation. The intersection's unusual layout, vegetation and visibility problems could support the inference that Lyford neither observed nor could reasonably have observed the intersection until it was too late to stop. His statement that he found himself “inextricably involved in an accident” was also consistent with that possibility [37]. Since that inference was consistent with innocence, the prosecution had not proved guilt beyond reasonable doubt [38].
The judgment did not announce a new statutory test. It applied principles drawn from the High Court's decision in McBride and the High Court's decision in Jiminez, as cited through the Western Australian Court of Appeal's decision in McPherson [18]-[22]. The statutory offence remained the offence in s 59A(1)(b): driving in a manner that, having regard to all the circumstances, was dangerous to the public or any person [17].
Before Lyford, as the judgment presents the law, dangerousness was not established merely because a driver failed to take due care and that failure caused bodily harm. The prosecution had to establish a feature of the particular driving that created a real, additional risk. The assessment was objective, but depended on findings about the driver's actual behaviour and relevant knowledge [18]-[22].
After applying that approach to this appeal, the court set aside the convictions because the facts did not establish beyond reasonable doubt that Lyford had an adequate opportunity to recognise the intersection and respond. This was an evidentiary application of the existing test, not an express alteration of the test itself. The judgment confirms that a failure to stop, or the fact that a collision occurred, does not automatically establish dangerous driving. The circumstances and the driver's opportunity to perceive and respond remain relevant to whether the alleged manner of driving had the required dangerous quality.
The decision also distinguishes the question whether stopping was required to give way from the separate question whether the prosecution proved dangerous driving. Blaxell J did not reject the Magistrate's view that stopping was necessary to meet the give-way obligation in the circumstances. The appeal nevertheless succeeded because the evidentiary basis for the critical findings about Lyford's awareness and opportunity to stop was insufficient [39].
At [18], Blaxell J said that dangerous driving requires a manner of driving that is “in a real sense potentially dangerous” to members of the public. In plain English, the test requires a genuine risk arising from the way the vehicle was driven. A poor driving decision or a collision alone does not answer that question.
At [19], the judgment explains that the prosecution must identify a feature that creates risk “over and above that ordinarily associated with the driving of a motor vehicle”. Put simply, dangerous driving is not interchangeable with carelessness. The prosecution must prove something more than a failure to meet ordinary standards of care.
At [21]-[22], the judgment directs attention first to the actual driving conduct, then to an objective assessment informed by what the driver knew or ought reasonably to have known. This means the analysis does not stop at the driver's own account or intention. It considers the conduct in its setting, including circumstances a reasonable driver should have appreciated.
At [31], the court identifies the critical factual issue: whether the distance from which Lyford noticed, or ought to have noticed, the intersection was sufficient for him to react and avoid the collision. The importance of this passage is that awareness must be considered in practical terms. It mattered whether Lyford had a real opportunity to respond, not merely whether the intersection existed or whether he eventually saw it.
At [36], Blaxell J concluded that the evidence could not support the inference that Lyford knew, before reaching the intersection, that he would only obtain a clear view to the right in the final 10 metres. In plain English, the court rejected the assumption that later knowledge of the obstruction established earlier awareness of how severe it was.
At [37]-[38], the court identified a competing inference that Lyford did not, and could not reasonably, observe the intersection until it was too late to stop. Because that explanation was consistent with innocence, the Magistrate could not be satisfied beyond reasonable doubt. This is the decisive reasoning in the appeal.
The case is particularly relevant where a dangerous-driving allegation depends on a driver's failure to respond to a road hazard, and the prosecution's case depends on what the driver saw, or should have seen, and when. The judgment makes the driver's opportunity to perceive and react relevant to the factual assessment of the alleged manner of driving [30]-[37].
It may be relevant to intersections or hazards that are difficult to identify because of vegetation, road alignment, topography, signage or other visibility problems. In Lyford, evidence described a camouflaged intersection, an obstructed view to the right, a sign that blended into its background, a faded give-way line and road camber that affected visibility [9], [23]-[24]. The court considered those matters when assessing whether the alternative inference was reasonable [37].
The decision also matters where the alleged dangerousness consists of inattention or failure to take care. Under the principles stated at [19]-[20], the prosecution must prove more than ordinary carelessness, and must establish that the manner of driving exposed the public to a further risk. A collision causing bodily harm does not, by itself, satisfy that requirement.
The judgment does not establish that every obscured intersection or every driver's failure to stop will lead to the same result. Its conclusion depended on the particular evidence, including the lack of direct evidence about when Lyford recognised the intersection and the competing inferences available from the visibility problems [31]-[38].
The supplied judgment contains no decisions subsequent to Lyford and provides no account of how later courts have treated it. Accordingly, its later treatment cannot be established from the material provided.
The judgment itself cites McBride v The Queen for the requirement of an actual potentiality of danger [18]. It cites Jiminez v The Queen for the distinction between dangerous driving and driving that merely involves want of care, through the quoted passage at [19]. It also relies on McPherson v Lucas for the approach to identifying the actual driving behaviour and assessing dangerousness objectively [19]-[22]. Those are the authorities identified and used in the judgment; no broader claim about their later treatment is made here.
The judgment does not specify a minimum distance or time within which a driver must identify an intersection or hazard. It holds that the evidence in this case did not support the Magistrate's particular inference about Lyford's awareness of the obstruction until the final 10 metres [36]. Whether a driver had sufficient opportunity to react remains dependent on the evidence in the particular case.
The decision also does not decide that a driver's subjective lack of recollection will always prevent a finding about awareness. Blaxell J noted that Lyford's account relied on assumption and hindsight and that there was no direct evidence he noticed the intersection in time to stop [32]-[34]. The judgment does not set out a general rule for what circumstantial evidence would be sufficient to establish earlier awareness.
The court did not resolve the separate issue of whether the give-way obligation itself required stopping in all comparable circumstances. It held only that, on the evidence in this case, the Magistrate was not wrong to find that a complete halt was needed to give way [39]. It also did not decide the honest-mistake ground on a developed evidentiary basis, observing that there was no evidence of an honest but mistaken belief to support it [39].
Finally, the court did not find that the Magistrate actually reversed the burden of proof. It considered the wording capable of implying that result, but treated it as an unfortunate expression rather than a substantive misunderstanding of the burden [40]. The convictions were set aside for the separate reason that a reasonable inference consistent with innocence remained open on the evidence [38], [41].
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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : LYFORD -v- WRIDE [2009] WASC 106
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Criminal law - Appeal from two convictions for dangerous driving occasioning bodily harm - Collision as a result of appellant's failure to give right of way at a rural intersection - 'Camouflaged' intersection at which view of other vehicle was obscured by vegetation - Whether appellant's manner of driving in failing to stop at the intersection was dangerous
Road Traffic Act 1974 (WA), s 59A
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44
McPherson v Lucas [2008] WASCA 56
1 BLAXELL J: This is an appeal (pursuant to leave granted on 24 November 2008) from the appellant's convictions in the Magistrates Court at Midland on two charges of dangerous driving occasioning bodily harm contrary to s 59A(1)(b) of the Road Traffic Act 1974 (WA).
2 The charges arose from a collision at a rural intersection on 17 December 2006 when a vehicle driven by the appellant collided with another vehicle which had right of way. The presence of the intersection was difficult to discern at a distance and roadside vegetation obstructed the appellant's view of the other vehicle until moments before the collision. As a result of the collision, two passengers in the other vehicle suffered bodily harm.
3 The appellant pleaded not guilty to each charge but was convicted following trial. The Magistrate essentially found the appellant was aware of the intersection as he approached it, and as he drew closer also became aware that he could not see whether another vehicle was approaching from the right. In these circumstances his Honour found that the appellant should have stopped his vehicle to ensure that the way was clear, but instead drove in a manner that was dangerous to the public by entering the intersection at a speed of 40 - 50 km per hour.
4 The appellant appeals from the Magistrate's decision on the following grounds:
(1) The verdict is unreasonable and cannot be supported by the evidence.
(2) The learned Magistrate erred in law in failing to have any regard to whether the prosecution had negatived honest and reasonable mistake of fact.
(3) The learned Magistrate erred in law and in fact by concluding that the appellant's manner of driving was dangerous because he 'should have stopped at the give-way sign'.
(4) The learned Magistrate erred in law in reversing the burden of proof.
5 Although the first of these grounds does not conform to s 8 of the Criminal Appeals Act 2004 (WA), it has been particularised on the basis that the Magistrate made numerous errors of law or fact. The respondent does not object to me dealing with the issues raised by those particulars, and I accordingly propose to determine them as if ground 1 is a ground of appeal under s 8(1)(a)(i).
6 The collision occurred in sunny weather at about 2.40 pm on 17 December 2006 at the intersection of Haddrill and Campersic Roads Baskerville. The two vehicles involved were a Mercedes Benz sedan (the Mercedes) driven by the appellant (Mr Lyford) and a Ford Falcon sedan (the Ford) driven by John Cusato (Mr Cusato). Immediately beforehand, the Mercedes had been travelling east in Haddrill Road, and the Ford north along Campersic Road.
7 The speed limit on Campersic Road was 80 km per hour and on Haddrill Road 70 km per hour. It was not in issue that Mr Cusato was driving at or about the speed limit, and that Mr Lyford was travelling at about 60 - 65 km per hour, but slowed to 40 - 50 km per hour as he entered the intersection.
8 Each driver saw the other vehicle only momentarily before impact. In this regard, the view of each driver was obstructed by heavy vegetation on the south western corner of the intersection. Because of this vegetation, Mr Lyford had no opportunity of seeing the Ford until he was 6 - 10 m from the edge of the sealed surface of Campersic Road. When he did gain that opportunity it was perhaps significant that the Ford was a mercury silver colour which 'changed in different lights' (ts 6).
9 Apart from the vegetation, there were further problems with the intersection as a result of its topography, layout and design. The intersection was originally construed as a 'T-junction', with Haddrill Road as the continuing road, and Campersic Road as the terminating road. Subsequently, the T-junction had been converted into a four-way intersection to allow access to a new housing estate. This conversion left the intersection with particular design flaws which created a hazard for drivers. In this regard, the Magistrate accepted the evidence of a retired road safety consultant living in Campersic Road (Mr Burton), who testified to the following effect:
(1) The curb alignment in Campersic Road changed at the intersection. This caused drivers in Haddrill Road to believe that the edge of Campersic Road was further into the intersection than it in fact was (ts 50).
(2) The intersection was also 'camouflaged' in such a way that it was not easily seen by drivers (unfamiliar with the intersection) until they had 'gone too deep in' (ts 52 - 53).
(3) There was a particular problem for drivers travelling east in Haddrill Road because of the camber on Campersic Road. This camber resulted in a small hump which caused the intersection 'to disappear into the background of Haddrill Road as it rises beyond the intersection' (ts 54 - 55).
(4) The 'give-way' sign facing east bound drivers in Haddrill Road was 'unusually close' to the left hand fence line. Furthermore, at a distance of 100 m, the sign itself blended in with the colour of a house in the background (ts 56 - 57).
(5) The white line at the give-way sign was faded and was not visible until 'around 15 metres out' by which time a driver was unlikely to be looking down (ts 57).
(With regard to the fourth of these deficiencies, the evidence conflicted as to whether one or two give-way signs had faced east bound drivers in Haddrill Road. Although there was no specific finding on this issue, a close inspection of the photographic evidence reveals that there was in fact only one give-way sign.)
10 A local resident who lived in the house closest to the intersection (Mrs Shaddick) testified that over a five year period she had been the first to attend between 24 and 30 crashes at the intersection. In almost every instance, 'it was the motor vehicle travelling along Haddrill Road that had struck the motor vehicle travelling along Campersic Road'.
11 The Magistrate also received evidence of a 'road safety audit' conducted by the local authority during March 2005, which resulted in the intersection being accepted for funding under the Federal 'black spot' scheme. Consequently, the intersection had been substantially modified after the collision the subject of the trial.
12 As to Mr Lyford's manner of driving, there was evidence of a written statement he made very shortly after the collision. According to that statement Mr Lyford had been travelling along Haddrill Road at only 60 - 65 km per hour because he was unfamiliar with the area. As he approached the intersection he 'instinctively' slowed down and also looked right and left before proceeding through. He first saw the Ford only a 'millisecond' before the collision.
13 Notwithstanding these admissions, it was Mr Lyford's evidence-in-chief that he could not recall whether he saw the intersection before the collision, but assumed that he did because he had 'instinctively slowed down' (ts 21, 27). Similarly, he was also unable to recall whether he saw the give-way sign before the accident (ts 33). Nevertheless, it was his evidence that:
I looked right, I didn't see anything. I looked left, I looked right again, and when I went to the intersection, out of the corner of my eye I saw a car.
14 During cross-examination Mr Lyford was challenged about these matters by reference to the contents of his written statement as well as the photographs of the intersection which had been tendered in evidence. During the course of this cross-examination, the following exchanges occurred:
Now, you say, 'I approached the intersection of Campersic Road and slowed down.' I'm assuming from that that you did know there was an intersection there?---Yes, yes. You can see the shrubbery on one corner and you can see the shrubbery on the south-east corner, yes.
Now, there is also things like a road going across - electricity lines overhead which would indicate there might be an intersection there?---Sure.
Being a person with significant experience in driving on an unfamiliar road, you would have assumed that there might be an intersection there?---Yes.
How far back from the intersection did you think you had reached the conclusion that there was an intersection there?---I don't know.
...
Do you recall being surprised as you reached the intersection or did you approach it in a normal manner?---Look, I was surprised to see him ... (ts 33 - 34).
...
So when you approached that intersection, did you feel that you had an obligation to give way to anything or not?---Yes, as I've said, I instinctively - it's instinctive. It's automaticity. You stop, you slow down (ts 35).
...
In your opinion as a driver of some experience, would you have been able to stop before reaching the road from the speed you were doing or not?---Would I have been able to stop?
Before entering the intersection; from the point you took the photograph?---Yes.
Now, how much further do you have to go before you can get a clear view up the road?---I can't remember (ts 36).
...
Would you say ... that you could see through those trees and see a vehicle approaching?---Well, I didn't.
You didn't and couldn't, I will put it to you?---I couldn't see.
Yes?---I didn't see. I didn't see. That's all I can say.
Did you assume you could, looking at those trees?---I didn't assume anything. I was simply driving my car, reached the intersection and found myself inextricably involved in an accident (ts 38).
...
Do you accept that on occasions where [there is] a requirement to give way would you have to stop your car in order to fulfil that obligation?---Yes, I think it would be prudent to [do] this, yes, in certain circumstances (ts 41).
15 Mr Lyford also accepted that he must have been less than 10 m from the intersection when he first had the opportunity of an unobstructed view to the right. However, it was also his evidence that he would not have had that view, if at that moment he was looking to the left (ts 39 - 40).
16 To the extent that there were discrepancies between Mr Lyford's oral testimony and his written statement, it was also his evidence that:
When I made that statement, you have got to give credence to the fact that I'd been in a serious collision. I was discombobulated, maybe. I don't know (ts 33).
17 Section 59A of the Road Traffic Act relevantly provides:
(1) If a motor vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person and the driver was, at the time of the incident, driving the motor vehicle -
...
(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,
18 For a manner of driving to be 'dangerous to the public' within the meaning of the section, it must have some quality which either intrinsically in all circumstances, or because of the particular circumstances, makes it in a real sense potentially dangerous to one or more members of the public: McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44, 49 - 50. In other words, the section requires the existence of an actual potentiality in fact of danger to the public in the particular manner of driving: McBride (50).
19 The offence is not established simply because bodily harm was caused as a result of the driver failing to drive with due care and attention: McPherson v Lucas [2008] WASCA 56 [24]. In this regard:
For the driving to be dangerous for the purposes of (s 59A) 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 (Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, 579).
20 Accordingly, in circumstances where it is said that the offence was committed as a result of the driver driving carelessly, the manner of driving must have been 'so inattentive' as to constitute a danger to the public in the sense referred to above: McPherson [34].
21 In determining whether a particular manner of driving was dangerous to the public, the correct approach is to firstly make factual findings as to the actual driving behaviour. In this regard, whether or not the driver looked for oncoming traffic is part of the manner of driving and is also relevant: McPherson [31].
22 In the end, the objective question to be determined is whether the manner of driving as found on the facts has the necessary quality of being dangerous to the public. In making this objective assessment, regard should be had to what the driver knew or ought reasonably to have known in all of the circumstances: McPherson [31].
The Magistrate's findings and reasons for decision
23 As already noted, the Magistrate found that the intersection, at the date of the collision, had all of the problems as described by Mr Burton and by the various reports put into evidence: (reasons for decision (RFD) at 15). These problems included the 'give-way' sign tending to 'blend into other things' from a distance of 100 m, and the faded white line which 'did not help approaching motorists identify the intersection': (RFD, 10).
24 In finding that the intersection had the problems described by Mr Burton I understand his Honour to have also accepted the following evidence (as summarised at RDF, 10 - 11):
Mr Burton said a driver should be able to pick up the Intersection from about 3 to 4 seconds away from it if travelling east along Haddrill Road.
However, Mr Burton said the view to the right of a driver travelling along Haddrill Road to the east towards Campersic Road was severely obstructed right up to the 'Give Way' signs by the vegetation in the adjoining paddock. Given that situation Mr Burton said a driver would have to stop at the Intersection to check for traffic travelling north along Campersic Road towards the Intersection.
25 As there was no independent eye witness to the collision the credibility of Mr Lyford's evidence as to his manner of driving was critical. In this regard, his Honour found that Mr Lyford was at times 'vague and assumptive' but otherwise 'gave his evidence to the best of his recollection': (RFD, 8). I understand this to be a finding that Mr Lyford was an honest but not necessarily reliable witness.
26 As to specific facts, his Honour found that Mr Lyford did see the 'give-way' sign as he approached the intersection. That finding was based upon Mr Lyford's written statement, and was also 'the only reasonable inference that can be drawn from his oral testimony as to why he slowed down as he approached the intersection': (RFD, 13). Furthermore, his Honour found that Mr Lyford saw the intersection itself:
Clearly the objects the Accused saw ahead indicated the Intersection was approaching as he saw the 'Give Way' sign, the fence line, power lines, bushes and shrubs and drew the inference there was an Intersection ahead. Had the Accused not seen, either the 'Give Way' sign, or the fence line, power lines, bushes and shrubs indicating the Intersection was ahead he would not have had any reason to have slowed the Mercedes down (13).
27 There were further findings that Mr Lyford was travelling at a speed of 60 - 65 km per hour along Haddrill Road, slowed to 40 - 50 km per hour as he entered the intersection, and did not have a clear view to his right towards the direction from which the Ford was travelling until less than 10 m from the give-way line: (RFD, 14).
28 His Honour also found that 'the colour of the Ford did contribute to the circumstances which led to the collision': (RFD, 14). (This finding implicitly accepts Mr Lyford's evidence that he did not see the Ford until moments prior to the collision.) As to the significance of the problems with the intersection as described by Mr Burton, his Honour held:
[T]here is nothing in that evidence that, upon the facts of this case, causes me to accept the manner of driving of the Accused was so attentive as not to amount to being dangerous to the public despite the topography of the Intersection and its environs.
The Accused on his own evidence was fully aware of what he was driving towards. The Accused saw the 'Give Way' signs from some distance, he was also aware he was approaching the Intersection by the 'Give Way' signs and the fence lines, he slowed his motor vehicle to between 40 & 50 km/hr, he was aware his vision to his right was obscured as he approached the Intersection and he was aware or should have reasonably been aware that he was unable to make an assessment as to whether there were any motor vehicles approaching from his right until he was less than 10 metres from the give way line.
However, despite the Accused being aware of all of those factors he drove the Mercedes into the Intersection at a speed between 40 & 50 km/hr not knowing whether or not a motor vehicle was approaching from his right.
This case is not a case in which it could be said the Accused did all that was reasonable in the circumstances. It is also not the case that it could be said it was physically impossible for the Accused to give way to the Ford despite the layout of the Intersection and the topography of the environs.
The Accused was aware for a considerable distance from the Intersection he could not see to his right. As the Accused drew closer to the Intersection he remained aware he could not see to this right and therefore he could not determine whether there was another motor vehicle approaching from his right.
I find the Accused could have and should have stopped at the 'Give Way' sign to enable him to determine if a motor vehicle was approaching the Intersection. Had the Accused done so, he would have been able to see the approaching Ford, notwithstanding the differential closing speeds of both the Ford and the Mercedes (15 - 16).
29 After referring to the authority of McPherson, his Honour went on to find that:
[T]he manner of driving by the Accused as he approached and then entered the Intersection, when viewed objectively, was in a real sense dangerous to human beings who as members of the public were upon Campersic Road (17).
Accordingly, his Honour was satisfied beyond reasonable doubt that each and every element of each offence had been proved.
30 There is no challenge on appeal to the Magistrate's findings that Mr Lyford saw the 'give-way' sign, and saw the intersection as he approached the point of collision. However, there is a significant issue as to how far back from the intersection Mr Lyford first noticed these things, and in that regard, there was no particular finding by the Magistrate (other than that it was 'some distance' or a 'considerable distance').
31 Obviously, the evidence did not allow any specific finding as to the precise distance from the point of collision that Mr Lyford first noticed (or ought reasonably to have noticed) the intersection and/or 'give-way' sign. However the issue which was critical to the question of guilt or innocence was whether this distance was sufficient for Mr Lyford to react and to take steps to avoid what occurred.
32 His Honour faced a difficult task in assessing this issue because, notwithstanding that Mr Lyford was found to be an honest witness, his evidence was based not on memory, but largely upon assumption and hindsight. In this respect, there was no direct evidence from Mr Lyford that he became aware of the intersection and of the obstruction to his view to the right in time to stop the vehicle and avoid any collision. Even his evidence during cross-examination concerning the shrubbery and the electricity lines was clearly not an admission that he saw these things in time to stop.
33 The written statement by Mr Lyford soon after the collision was also of little help. That too was made with the benefit of hindsight and by reference to the scene of the collision which Mr Lyford had under observation at the time of making the statement.
34 Accordingly, Mr Lyford's assertion in that statement that 'I looked right and I looked left and I proceeded through the intersection' should not be construed as an implied admission that he had time to stop. The evidence showed that these actions by Mr Lyford occurred in the final moments before the collision and within a distance of perhaps 10 m while travelling at 40 - 50 km per hour.
35 The findings which were relevant to the critical issue were that Mr Lyford 'drew the inference there was an intersection ahead' and 'was aware for a considerable distance from the intersection he could not see to his right'. As there was no direct evidence of these matters, the Magistrate must necessarily have arrived at the findings themselves by way of inference.
36 His Honour also made the more specific finding that as Mr Lyford approached the intersection 'he was aware or should have reasonably been aware that he was unable to make an assessment as to whether there were any motor vehicles approaching from his right until he was less that 10 metres from the give-way line'. In my opinion, the evidence was incapable of providing any support for this particular inference. Until Mr Lyford actually arrived at the intersection, there was no way he could have known that he would only have a clear view to the right in the last 10 metres.
37 It is also my view, that on a careful analysis of the evidence as a whole, there is an alternative reasonable inference which is consistent with the proven facts. That alternative inference is that Mr Lyford did not observe the intersection (and could not reasonably have observed the intersection) until it was too late to stop. Such an inference is supported by the evidence of the unusual problems with the intersection and the trap that it posed to drivers travelling east in Haddrill Road. It is also supported by Mr Lyford's evidence that he reached the intersection and found himself 'inextricably involved in an accident'.
38 Given that there were competing inferences to explain Mr Lyford's particular manner of driving, and that one of these was consistent with his innocence, it follows that the Magistrate fell into error in being satisfied beyond reasonable doubt as to his guilt. It also follows that the first ground of appeal should be upheld.
39 As to the remaining grounds of appeal, I simply observe that there was no evidence of an honest but mistaken belief which would support the second ground. As to the third ground, I do not consider that the Magistrate was wrong in finding that it was necessary for Mr Lyford to stop at the intersection in order to give right of way. Even though the intersection was controlled by a 'give way' sign (and not a 'stop' sign), the evidence established that it was only possible to meet the obligation to give way by coming to a complete halt.
40 As to the fourth ground of appeal, his Honour's opinion that nothing in the facts of the case caused him 'to accept the manner of driving of the accused was so attentive as not to amount to being dangerous' did imply a reversal of the onus of proof. However, it is hardly likely that an experienced magistrate would ignore the burden of proof which always rests upon the prosecution. Accordingly, I think that this was simply an unfortunate example of infelicitous expression which did not detract from his Honour's understanding of the fundamental principles as to the onus and standard of proof.
41 For the above reasons the appeal will be allowed, and each conviction will be set aside.
Jiminez
The Queen
(1992) 173 CLR 572
(1966) 115 CLR 44
Appeal allowed. Each conviction for dangerous driving occasioning bodily harm was set aside: [41].