Kay v R [2004] WASCA 222

Kay v R [2004] WASCA 222 - WASCA 2004 case summary — Zoe

[56]

"65 I have already touched upon the nature of the offence of dangerous driving. It may accommodate a range of driving behaviour. Dangerous driving is not the same thing as negligent driving. A momentary lapse of attention may be sufficient to constitute dangerous driving, but it may involve a range of driving fault which will elevate the seriousness of the offence in the circumstances of its commission. The test is whether objectively the driving is in reality actually or potentially dangerous to the public or another person: Kaighin v The Queen (1990) 1 WAR 390, 395. Therefore a principal circumstance delineating the seriousness of the offence will be an evaluation of the driving misconduct involved. That was particularly a matter for Groves DCJ. The verdict of the jury provided his Honour with no guidance beyond the conclusion of dangerousness.

66 Another important fact, of course, will be that the driving misconduct caused a death and the circumstances in which that occurred. By the Road Traffic Act, s 59(3), dangerous driving causing death or grievous bodily harm, as that term is understood by the law, is generally punishable upon indictment by imprisonment for 4 years or summarily by imprisonment for 18 months. Section 59A of that Act provides the offence of dangerous driving causing bodily harm. The offence is a simple offence punishable summarily for a first offence by imprisonment for 6 months or for a second or subsequent offence by imprisonment for 18 months. Dangerous driving without more is punishable under s 61 of the Act by a fine for a first offence and imprisonment for 6 months for a second or subsequent offence. Careless driving is a lesser offence again, punishable under s 62 by a fine. It can be seen therefore that these offences are graded according to the seriousness of the driving misconduct and by a particular reference to the seriousness of the harm which results. The most serious form of the offence is, of course, that which takes life."

[80]

"CHONG, MS: So when you were at the Kalgoorlie Bitter tank, what did you see? --- I noticed that there were two red lights on the railway crossing for - the warning was flashing.

When you were at that landmark, the Kalgoorlie Bitter tank, where was the GKR road train? --- About 200 metres in front of me.

Is there any particular landmark that you are able to point to or describe? --- It's not on the photo - you can't see it. On the right-hand side about 200 metres in front - on the right-hand side the highway - is a Chicken Treat store.

A Chicken Treat store? --- Yeah.

So the Chicken Treat store is how many metres from the crossing? --- About 500 metres.

So when you were at the Kalgoorlie Bitter tank, you saw the red flashing lights and the GKR road train was at the Chicken Treat ahead of you? ---that's right.

What did you do in relation to yourself when you saw the red flashing lights? --- I was already doing about 50 kilometres an hour because I was going to stop previously. I backed off my speed again straightaway and applied the brakes ready to slowly pull up.

How did you stop off your speed? --- Took my foot off the accelerator.

And was there anything you had to do in relation to taking your foot off the accelerator? --- I applied my foot to the brake but, like I say, I was empty so I didn't need ---

...

So you were slowing down for what? --- To stop at the railway crossing.

And what did you see next when you dropped your gear? --- I was just slowly pulling up and just about at a stop already. The GKR truck in front of me was still - I don't know. He was still gaining speed on mine, so ---

What did you see apart from the GKR road train at the - near or about the motel? --- I didn't - didn't see anything else apart from the lights where - the railway cross flashing and the spotlight from the train coming along down the railway.

Where were the spotlights coming from? Where was the train coming from? --- From my right-hand side.

From your right-hand side, okay. Then what happened? --- Well, things were looking like it was getting a bit - getting a bit close for contact and I still noticed the truck hadn't - the GKR truck in front hadn't slowed down at all.

What did you do? --- And it got real close. I picked up the UHF quickly as I pretty much pulled over my truck at the same time and just said, 'Copy' and 'GKR' - split second, bang, everything smashed.

Okay. You picked up your UHF radio, said 'Copy to GKR.' After you said, 'Copy to GKR,' what was the next thing you saw? --- A split - a split second of tail-light just lit up, and then an awesome smash.

You say the split second, the tail-lights lit up. What do you mean by the tail-lights? --- The brake lights were applied.

The brake lights. Then what happened? --- And then it was just all over, then the truck hit the train.

What was the vision of the truck hitting the train? --- Something that I can't couldn't describe. It's just - just a mess, big pieces of plastic and metal hitting a big - big bit of steel going in opposite directions.

Okay, I will stop you there. How far back were you when you saw the GKR road train hit - hit the train? --- About 200 metres.

Sorry? --- 150 metres, 200 metres."

[84]

"Based particularly on Mr Andrew Bolger's evidence, which the jury obviously accepted, as I do also, before you reached Merredin you had displayed an arrogance on the road. You refused to allow Mr Bolger to pass you, stating that you were 'faster' than he was. It should be remembered that he was driving a much lighter road train and it would have been reasonable for him to be able to pass you.

You then drove through the Merredin town site at an average speed of 67 kilometres an hour, a speed which I consider to be far too fast, bearing in mind the weight and size of your vehicle, the lack of manoeuvrability of it and the stopping distance required. Further, there was the fact that it was in fact a built-up area. You appeared to be intent on keeping ahead of Mr Bolger's road train. Mr Bolger said he usually drove through Merredin at a speed of about 45 to 50 kilometres an hour, a speed which in my view was consistent with the factor's I've already mentioned.

As you went through the town site, the goods train was approaching the crossing from your right-hand side. The evidence is that it triggered off the flashing light some 47 seconds before it was due to reach the crossing. The average speed of that train was 38 kilometres an hour. You were warned of the crossing by a number of signs; firstly, those on the road, which faced you as you drove towards the crossing, and you were warned of the goods train by the flashing lights. It is also the evidence that the spotlights on the train could be seen from a considerable distance.

During this period, the small sedan driven by Mr Radford approached the crossing and stopped at the white line. It is the evidence that the goods train sounded its horn at least twice. Despite all the warning signals and obviously clear vision of the approaching train, you continued towards the crossing as though it was clear and without slowing down, because your attention was focused elsewhere, you obviously did not see the stationary car until the last second, and when it was too late. The impact was unavoidable, with the tragic consequences we have heard about. It was tragic because of the deaths and injuries to the young people in the prime of their lives, and tragic also because of the devastating effects upon the victims, immediate families and their wide range of friends.

Having sat through the trial and reviewed the evidence, I have concluded that your manner of driving was arrogant and of great potential danger to other road user, as was clear, there was no question of any momentary inattention. An accident of the type which occurred was inevitable. The matter has given rise to some difficulties in sentencing; it was the basis of the crown case that you failed to keep a proper lookout and the question arises, why did you not see the small car, which you obviously did not until the last second or so.

The proven facts are, as I have said, that you were driving at an average speed of 67 kilometres an hour, across the stretch of road - along the stretch of road, up to the crossing and through this built-up area. It is the case that - according to Mr Bolger, and it is reasonable to accept this - that a road train of your size and weight took about 400 metres to pull up before a crossing. 100 metres from the crossing, the computer showed that you accelerated your vehicle - the throttle to a 100 per cent, therefore there was an attempt at that point to increase the speed of your vehicle. At that time the flashing lights would have been clearly available, had you been keeping a proper lookout. As I have said, there were 47 seconds from the time the train first triggered the lights - the flashing lights, until it arrived at the intersection.

Although one cannot be certain as to the reasons why you did not stop, there must have been a reason consistent with your failing to keep a proper lookout why you did not. A conclusion in my view, which is well open on the facts, is that you were attempting to beat the train across the crossing, but in any event, it is clear that your driving involved a callous disregard for other road users. Consistent with this view and the general driving displayed by you, is the fact that this is the third occasion that you have struck the rear of another vehicle whilst driving road trains."

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