Citation : MAGORIAN -v- LODGE [2011] WASC 147

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Dangerous driving causing death - Construction of s 59(1)(b) of the Road Traffic Act 1974 (WA) - Relevance of intoxication - Whether driving whilst intoxicated, without more, sufficient to establish dangerous driving - Whether fact of intoxication, in combination with other driving behaviour, capable of rendering otherwise unexceptionable driving dangerous - Whether denial of procedural fairness in single judge appeal

Crimes Act 1900 (NSW), s 52A

Road Traffic Act 1974 (WA), s 59, s 59(1)(a), s 59(1)(b), s 59B, s 59B(5), s 59B(6), s 71, s 71(1), s 71(3)

Conviction and other orders made by primary judge set aside

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

Krakouer v The State of Western Australia [2006] WASCA 81

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

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

McPherson v Lucas [2008] WASCA 56

Pfeiffer v The Queen (Unreported, SACCA, 11 December 1990)

R v F (1957) SR (NSW) 543

R v Ganderton (Unreported, NSWCCA, 17 September 1998)

R v Greenham (1997) 25 MVR 495

R v Kroon (1990) 52 A Crim R 15

R v Leaf-Milham (1987) 47 SASR 499

R v Woodward [2001] NSWCCA 90; (2001) 33 MVR 536

Smith v The Queen [1976] WAR 97

1 McLURE P: The appellant appeals against orders made by Murray J in an appeal by the State against the acquittal of the appellant by Magistrate Malley on one charge of dangerous driving causing death.

2 On 31 May 2011 Murray J upheld the State appeal, set aside the verdict of the learned magistrate, entered a judgment of conviction on the charge of dangerous driving causing death and remitted the matter to the magistrate for sentencing. On 4 October 2011 Magistrate Malley sentenced the appellant to 18 months' imprisonment for the offence. The appellant has appealed against that sentence to a single judge of the General Division. On 13 December 2011 Hall J referred the appellant's appeal against sentence to this court.

3 The appellant's appeals against his conviction and sentence were heard together. The appellant has been on bail pending the determination by this court of his appeals.

4 The broad factual circumstances of the offence were not in dispute at trial. The appellant accepted that at about 11.15 am on Sunday 26 July 2009 he was driving his motor vehicle on Stirling Highway in Claremont when he struck the deceased, Mr Hudson Smith, with his vehicle (the incident).

5 The incident occurred near the intersection of Stirling Highway and Richardson Avenue. Stirling Highway has dual lanes in each direction with a median strip in the middle. The appellant's vehicle was travelling in the right-hand lane (adjacent to the median strip), heading towards Fremantle. The appellant changed from the right-hand lane to the left-hand lane. Mr Smith, an elderly pedestrian, was crossing the road (from right to left from the perspective of vehicles travelling towards Fremantle) at this point. Despite braking heavily, the appellant's vehicle struck Mr Smith. Mr Smith died at the scene from his injuries. The appellant had a blood alcohol content of at least 0.12 at the time of the incident.

6 The appellant was charged with one count of dangerous driving causing death contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) (the Act).

7 The appellant's trial in the Magistrates Court was conducted on 10 and 11 January 2011. On 12 January 2011 the appellant was acquitted of the charge. The magistrate provided oral reasons for his decision.

8 The respondent successfully appealed to a single judge of the General Division (the single judge appeal). The appellant's acquittal was set aside and a judgment of conviction entered. The appellant appeals to this court against his conviction on three grounds. On 22 August 2011, Mazza J (as he then was) granted leave in relation to ground 1 and ordered that the application for leave to appeal on the remaining grounds be referred to the hearing of the appeal.

9 Section 59(1) of the Act relevantly provides:

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 -

(a) while under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle; or

(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 ...

10 Section 59B relevantly provides:

(5) In any proceeding for an offence against section 59 ... a person who had at the time of the alleged offence a blood alcohol content of or above 0.15g of alcohol per 100ml of blood shall be deemed to have been under the influence of alcohol to such an extent as to be incapable of having proper control of a motor vehicle at the time of the alleged offence.

(6) In any proceeding for an offence against section 59 ... it is a defence for the person charged to prove that the death ... 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.

11 The appellant was charged under par (b), not par (a), of s 59(1) of the Act.

12 Section 59 and s 59B were inserted in the Act by the Road Traffic Amendment (Dangerous Driving) Act 2004 (WA) (the Amendment Act). Before the Amendment Act came into effect on 1 January 2005, s 59(1) of the Act was confined to what is now s 59(1)(b) and required the State to prove (beyond reasonable doubt) that the dangerous manner of driving caused the death.

13 The only causal connection the State has to establish under the current provision is that a motor vehicle driven by the accused was involved in an incident that resulted in the death of another person. If the State also proves that, at the time of the incident, the accused was driving the motor vehicle in the condition or manner specified in pars (a) and (b) respectively, the offence of dangerous driving will be established unless the accused establishes that the death was not in any way attributable to (relevantly) his dangerous condition or dangerous manner of driving.

14 Although the burden is on the accused to establish the lack of any causal connection between his dangerous condition or dangerous manner of driving (as the case may be) and the death, the standard of proof is the balance of probabilities: R v F (1957) SR (NSW) 543; R v Woodward [2001] NSWCCA 90; (2001) 33 MVR 536; R v Ganderton (Unreported, NSWCCA, 17 September 1998).

15 The second reading speech for the Amendment Act explains its background and legislative purpose:

Under Western Australia's Road Traffic Act, as the law presently stands, it is an offence to cause the death of, or grievous bodily harm to, another person by driving a motor vehicle in a manner that is dangerous to the public or to any person. However, in order to be found guilty under section 59, the defendant's driving itself must be viewed objectively and held to be dangerous and there must be some fault on the part of the defendant that caused the danger. Generally speaking, the fact that alcohol or drugs adversely affected the defendant is a relevant circumstance in considering the manner of his or her driving, but is not, of itself, determinative of whether the defendant's driving was dangerous. The proposed amendments to sections 59 and 59A of the Road Traffic Act will overcome the evidentiary difficulties associated with proving that intoxicated drivers who are involved in incidents occasioning death or serious harm can be convicted of dangerous driving.

When death or serious harm is caused by an incident involving a motor vehicle driven by a drunk or intoxicated person, the fact of intoxication will be evidence of dangerous driving and it will be up to the person charged to satisfy the court that the death was not in any way attributable to the fact that he or she was drunk or intoxicated. In other words, a driver who is under the influence of drugs and/or alcohol to such extent as to be incapable of having control of the vehicle and is then involved in an incident that causes death or serious harm will have committed an offence. It will be a defence for that person to prove that the death or serious harm that resulted from the incident was in no way attributable to the fact of that person's intoxication. However, a driver whose blood alcohol content exceeds 0.15 per cent will be deemed to be incapable of having control of a motor vehicle.

See Western Australia, Parliamentary Debates, Legislative Assembly, 23 June 2004, 4184b - 4185a (Mr JA McGinty, Attorney General).

16 The prosecution called a number of witnesses who were present in vehicles on Stirling Highway at the time of, or shortly before, the incident. The witnesses included Linda Mitchell who was driving in the left-hand lane on Stirling Highway travelling towards Fremantle when she was overtaken by the appellant travelling in the right-hand lane prior to the incident. She said that in the course of overtaking her vehicle the wheels of the appellant's car were over the line dividing the left and right-hand lanes. She also said that after she was overtaken, the appellant's car moved into the left-hand lane.

17 Paul Fong was driving in the left-hand lane of Stirling Highway towards Fremantle. He saw the deceased start to cross the road. Paul Fong's partner, Leanne Oitmaa, was in the front passenger seat of Mr Fong's car. She saw the deceased on the median strip. After overtaking Paul Fong's vehicle, the appellant moved into the left-hand lane and struck the deceased.

18 Behind Paul Fong, and also travelling in the left-hand lane of Stirling Highway towards Fremantle, was David Fong. He was driving his vehicle at around 55 kph when the appellant's car overtook him in the right-hand lane. David Fong saw the deceased on the median strip. Victor Fong, the father of Paul and David Fong, was in the front passenger seat of David Fong's vehicle. He also saw the deceased on the median strip. The vehicles driven by the Fongs must have been some distance ahead of the vehicle driven by Ms Mitchell.

19 Helen Jones was driving towards Perth. She saw the deceased on the median strip and was concerned for his safety if he proceeded to cross to the other side of Stirling Highway in front of the cars coming up the hill towards his position on the median strip.

20 The prosecution called Professor David Joyce, a physician specialising in clinical pharmacology and toxicology. He stated in his report adduced in evidence at the trial:

Alcohol impairs driving ability through impaired judgement, false confidence ... impaired visual tracking and delayed reaction time ... sleepiness, inattention, incoordination and aggression ... At elevated blood alcohol levels, drivers are less cautious in their driving, less attentive to risks on the road and slower in responding to an emergency.

...

People are affected differently by the same blood alcohol concentration. Those who are accustomed to a lot of alcohol are less impaired than those who drink little. Hardened drinkers may appear unimpaired at quite high blood alcohol concentrations. However, deterioration occurs rapidly, even in the case of hardened drinkers and experienced drivers as blood alcohol levels rise above 0.10%. It is accepted that driving impairment is present in everyone with a blood alcohol concentration of 0.10% or above, regardless of drinking experience.

21 In his evidence-in-chief Professor Joyce said everybody with a blood alcohol content above 0.10, regardless of their drinking or driving experience, is 'impaired in their ability to safely drive cars' (ts 39, 11/1). However, he accepted in cross-examination that the extent or degree of impairment would depend on the individual (ts 40, 11/1).

22 The appellant did not give evidence at trial. However, he had participated in a video-recorded interview with police (VROI) which was tendered. Expert evidence adduced by the defence at trial was rejected.

23 Based on Ms Mitchell's evidence, the prosecution in closing claimed that prior to the incident, the appellant's car was in the left-hand lane behind David Fong's car and thus the appellant had a similar view of the deceased before the incident. The magistrate rejected that claim, there being no evidence to support a finding that the appellant's car moved into the left-hand lane on two occasions before the incident (ts 5, 12/1).

24 The magistrate made the following findings of fact. The appellant was driving his vehicle on Stirling Highway in Claremont in the right-hand lane going up a gentle incline. At the same time Mr Paul Fong was in the left-hand lane ahead of the appellant with his brother in another vehicle behind him. Paul Fong was doing 60 kph, the speed limit. The road is a dual lane highway and it was a Sunday morning with light traffic and good visibility. There was a white vehicle in the right-hand lane some three car lengths in front of Paul Fong's vehicle and doing around the same speed. The magistrate continued:

I find that the [appellant] was doing a speed in excess of the speed limit, in the vicinity of 70 to 75 kilometres an hour, and I find that he had a blood alcohol level of .12 per centum. I find that as the white vehicle and Paul Fong's vehicle approached the location around Richardson Avenue, Mr Smith, a 90 year old gentleman, had moved from the north west side of Stirling Highway onto the median strip and, having looked towards oncoming traffic, moved out onto the right hand lane of the south west direction lanes. I find that as he undertook this act, the [appellant's] vehicle approached in the right hand lane at a speed as found, and that speed would have been of greater speed than that of the white vehicle. He then proceeded to change lanes from the right lane to the left lane.

I find that there is no evidence that the [appellant] was aware of the presence of Mr Smith prior to impact. I find that the evidence of Mr Paul Fong confirms that the manner of changing lanes by the accused was in an appropriate manner and was done without interference to any other vehicle. I find that, having changed lanes, the [appellant] was confronted by the presence of Mr Smith, and by reason of ... the presence of the white vehicle and the short distance between he and Mr Smith at that point of time, despite having braked, a collision occurred and resulted in Mr Smith's death.

... I would accept that to a layperson, the presence of alcohol of .12 per centum would axiomatically lead to a presumption of lack of control, however below [.15], this is not the case. There requires more evidence from the prosecution that the manner of driving was affected by the presence of alcohol. That depends, as stated by Professor Joyce, on all the circumstances. Facts such as the failure to brake adequately or appropriately, et cetera, may be factors taken into account.

...

With regard to the speed, the evidence suggests that the accused was breaching the road rules, doing 70 to 75 kilometres an hour. In the case of speed creating a danger, it is a case of time, place and circumstances. This is a Sunday morning, 11 am, good visibility, light traffic. Whilst it was an offence - and I do not accept that the speed is acceptable, but at the same time, in my view, it would not, in all the circumstances, to do a speed of 70 to 75 kilometres an hour, in those circumstances, in itself amount to dangerous driving ... [I]n the circumstances of this case, it couldn't be suggested, certainly, on the facts that the speed itself created a danger (ts 6 - 7, 12/1).

25 After referring to the relevant authorities, the magistrate continued:

Given my findings as to the impact of alcohol, given my findings as to the impact of speed and given the evidence as to the manner of changing lanes was uncontroversial - in other words, it was not violent or created a danger to other road users in itself - the prosecution case falls to the fact that the [appellant] drove inattentively and thereby created a danger to the public in that he failed to observe Mr Smith until immediately prior to the collision.

The prosecution would suggest the [appellant] should have known or reasonably foreseen that a pedestrian may be attempting to cross the road and therefore his manoeuvre was dangerous. With respect, I consider that the prosecution has failed to establish beyond reasonable doubt such a level of inattention. The fact is, the [appellant] says he was not aware of the presence of Mr Smith in his record of interview. We don't know where the [appellant's] vehicle was at the time the deceased was on the centre island or what the [appellant's] view of the location was.

What we do know is the [appellant] was in the right hand lane behind a white vehicle which the [appellant] says blocked his view as to Mr Smith's presence. His view was not the view of the Fongs and it can't be concluded because they saw the deceased that the [appellant] should have had the same view ...

... I am unable to conclude that the accused wasn't keeping a proper look out.

I am unable to conclude that the white vehicle, because of its position on the road, hid [sic] the presence of the pedestrian such that when he stepped off onto the highway his presence would have been hidden from the following or overtaking vehicle as it caught up. It is of note that even if the accused had been doing the speed limit at the time, the manoeuvre - the outcome based on the expert evidence is that the same outcome was likely (ts 4 - 10, 12/1).

26 The grounds of appeal in the single judge appeal were as follows:

1. The learned Magistrate erred in fact in finding that the [appellant's] blood alcohol concentration was 0.12% at the time of the crash, given the finding was against the weight of the evidence given at trial.
2. The learned Magistrate erred in law when determining whether the prosecution had established to the requisite standard that the manner of the [appellant's] driving was, in all the circumstances, dangerous to the public, by considering each of the following features the [appellant's] driving in isolation rather than the evidence in its entirety:

(a) the [appellant's] level of alcohol intoxication;

(b) the speed at which the [appellant] was driving his vehicle immediately prior to the incident; and

(c) the movement of the [appellant's] vehicle immediately prior to the incident.

1. The learned Magistrate erred in law by considering matters relevant only to the defence pursuant to s 59B(6)(b) ... when determining whether the prosecution had established beyond reasonable doubt that the manner of the [appellant's] driving was, in all the circumstances, dangerous to the public.

27 On my reading of the primary judge's reasons ([25], [67]) it appears he accepted that the magistrate's finding of a blood alcohol concentration of 0.12 was against the weight of the evidence and concluded that it was 0.14. The primary judge then identifies an error not expressly raised in the grounds of appeal:

[H]is Honour does not seem to have considered the unchallenged evidence of Professor Joyce as to the significance of such a blood alcohol concentration in relation to making a finding about the contribution of the level of intoxication to the manner of the [appellant's] driving [25].

28 The primary judge dismissed ground 3. Ground 2 was dealt with as follows:

This brings me to ground 2, which I would uphold, although I would not espouse the proposition which is part of the complaint made by that ground that in considering whether the manner of the driving was dangerous, his Honour compartmentalised the various factors thrown up by the evidence and failed to consider the evidence in its entirety.

Nevertheless, I am of the view that his Honour erred in his failure to conclude that the evidence which he accepted established that the driving was dangerous, in the sense referred to in the Act ... [29] - [30].

Having upheld grounds 1 and 2 in the way he did, the primary judge then conducted a review of all the evidence at trial from which he concluded that the appellant was guilty of the offence charged. In the course of this exercise, the primary judge made findings of fact which were either inconsistent with the magistrate's primary factual findings or which travelled well beyond the findings of the magistrate. The parts of the primary judge's reasons (set out below) that go beyond the findings of the magistrate are in italics.

29 The primary judge's reasoning can be gathered from the following:

The [appellant's] state of intoxication was considerable. While it did not reach the level which would deem him to be incapable of driving the vehicle properly, it was very close to that level. It was undoubtedly the case that his intoxication would have given the [appellant] a degree of confidence about his driving capacity which was not warranted. There was evidence, in the manner in which, very shortly before the accident, the [appellant] passed Ms Mitchell that his 'visual tracking' capacity, to use the terminology of Professor Joyce's report, was impaired.

He was less cautious and less attentive to the risks of the road. He would undoubtedly be slower to respond to the emergency presented by the appearance of Mr Smith in front of him and would have had delayed reaction time ...

Although his driving was certainly not erratic, he exhibited impatience. When he came up behind the white vehicle, he apparently made a quick judgment to pass it on the left. Whether that vehicle did, in fact, brake or reduce its speed to any degree, seems to me not to be to the point. It seems that the [appellant] perceived that to be the case, but that may have been because of the greater speed, about 15 kilometres per hour greater, and the rapidity with which he would have closed up to the vehicle in front.

His judgment that he could safely go to the left, in the limited space of a few car lengths between the rear of the car in front and the front of Mr Paul Fong's vehicle, must have been virtually instantaneous. It seems to be clear that he judged that he had room to get in front of Mr Fong, and he looked to see if there was any other impediment to moving left in his 'blind spot'. That distracted his attention from the road ahead. There is no evidence that he took the time to indicate that he was changing lanes to the left. He simply made the manoeuvre. Mr Paul Fong said he accelerated to do so.

By the time the [appellant] looked up, as I have already said, he must have been very close to Mr Smith indeed. He was certainly already passing the white vehicle. The physical evidence and the evidence of the witnesses, Mr Paul Fong and Ms Oitmaa, establishes that, given some delay to the [appellant's] reaction time, he would have had little time, after he registered the presence of Mr Smith ahead of him, to do more than apply the brakes as hard as he could, over the short distance involved, with no capacity to bring the vehicle to a halt, and he had left himself no capacity to avoid hitting Mr Smith by moving his car to the left or the right.

The dangerous quality of his driving is perhaps best expressed by describing the [appellant's] change of lanes as an impatient manoeuvre, made to avoid reducing his speed, without having the capacity to see that the road ahead was clear before the manoeuvre was made. His inattention to the road ahead, although no doubt merely momentary, was fatally dangerous [78] - [83].

30 Having concluded that the appellant's manner of driving was dangerous he turned his attention to causation. He said:

In my opinion, it could not be made out. The dangerous quality of the driving lay in the decision to change into the kerbside lane and the execution of that manoeuvre, together with the creation of an incapacity to avoid hitting Mr Smith. That being so, that dangerous driving undoubtedly played a major causal role in bringing about Mr Smith's death [85].

31 The appellant contends that the primary judge erred in:

(1) concluding that the magistrate had erred in finding that the appellant's blood alcohol concentration was 0.12 because:

(a) the prosecution case at trial was that the appellant's blood alcohol concentration was 0.12;

(b) the magistrate's finding was consistent with, and open on, the evidence; and

(c) even if the magistrate erred, there was no causal link between that error and any miscarriage of justice.

(a) he found that the error contended for was not made out by the State;

(b) alternatively, he failed to give any proper reasons for upholding ground 2.

32 Section 71 of the Act relates to the determination of blood alcohol content. It relevantly provides:

(1) ... a person's blood alcohol content at any time which is or may be material in the proceeding (the material time) shall be calculated having regard to -

(a) the time of the person's last drink containing alcohol taken at or before the material time; and

(b) the material time; and

(c) the time at which the sample of the person's breath or blood was provided or taken for analysis (the time of sampling); and

(d) the person's blood alcohol content at the time of sampling,

so as to give effect to the presumption that after a person's latest drink containing alcohol the person's blood alcohol content increases at the rate of 0.016g of alcohol per 100ml of blood per hour for a period of 2 hours and, after that period, decreases at the rate of 0.016g of alcohol per 100ml of blood per hour.

(2) ...

(3) For the purpose of making a calculation under subsection (1) ... in any case where the time of a person's last drink containing alcohol is not ascertained, the time of the person's last drink containing alcohol shall be taken to have been such time as produces the result most favourable to the person charged.

(4) In any proceeding ... the concentration of alcohol calculated to have been present in the blood of a person at any time under the preceding provisions of this section shall be conclusively presumed to have been present in the blood of that person at that time.

33 Police conducted a breath test of the appellant within an hour after the incident. The details and outcome of the breath test were recorded in writing and adduced in evidence. The document records that the appellant's response to the question as to the time of his last drink containing alcohol was 'about 2 am this morning, not sure'.

34 The analysis was undertaken on the basis that the time of the appellant's last drink was unknown. His blood alcohol content at the time of the test was calculated to be 0.131. The most favourable time under s 71(3) was taken to be the time of the incident. His blood alcohol content at that time was calculated to be 0.12.

35 On the subject of the time of his last drink, the appellant said in the VROI:

MAGORIAN: Prior to that collision, when was the ... what was the time of your last drink:

LODGE: Two A-M.

MAGORIAN: Two A-M? So two A-M this this morning?

LODGE: Mmm

MAGORIAN: How do you know it was that time?

LODGE: That's what time we got home, got back to the apartment.

...

MAGORIAN: So you got back to the apartment at two o'clock. Does that mean you were drinking ... you were last drinking at the nightclub or you were drinking at home?

LODGE: It's a five minute walk from the club so ...

MAGORIAN: Okay ... so around two o'clock?

LODGE: ... around two o'clock yeah.

36 After making some confusing statements in opening about the State case on the issue of the appellant's blood alcohol content at the time of the incident, the police prosecutor then summarised it in the following terms:

[I]n summary, the prosecution case is that, and I'll adduce evidence to show that, by driving on a straight stretch of road in light traffic with good visibility with no obstructions to his vision by failing to keep a proper lookout at 72 kilometres an hour with a blood alcohol content of at least .120, the [appellant's] manner of driving was dangerous in all the circumstances and this directly resulted in the death of Mr Smith (ts 4, 10/1).

37 Thus, the manner of driving was identified as a failure to keep a proper lookout in all the specified circumstances.

38 In response to a question from the prosecutor, Professor Joyce said that if the appellant's last drink was at 2.00 am, his calculated reading under s 71 would have been .142 (ts 39, 10/1).

39 The State case in closing was consistent with its opening. The prosecutor said:

As I mentioned to you in my opening, the prosecution says that by driving on a straight stretch of road in light traffic with otherwise good visibility with no obstructions to his vision, including failing to keep a proper lookout at a minimum speed of 72 kilometres with a blood alcohol reading, I would say, of .12, the [appellant's] manner of driving was dangerous in all the circumstances (ts 57, 11/1).

40 However, later in his closing the prosecutor referred to Professor Joyce's evidence of the appellant having a blood alcohol content of .142 based on the time of his last drink being 2.00 am (ts 64, 11/1).

41 Although there was some equivocation on the subject, the prosecution's opening and closing left little room for doubt that its case was that the appellant's blood alcohol content at the time of the incident was at least .12. That reflected acceptance of the fact that s 71(3) applied because of the appellant's uncertainty as to the exact time of his last drink. The magistrate did not make a finding as to the exact time of the appellant's last drink. Whether or not s 71(3) applies where the uncertainty would have no effect on the outcome (because the time of the last drink must have occurred outside the two-hour window in which the blood alcohol content is presumed under s 71(1) to increase) was not in issue.

42 If the State intended to prove a figure higher than at least 0.12, fairness to the appellant required that it do so clearly and unambiguously. In the circumstances, the magistrate was correct to make the finding he did. Accordingly, the primary judge erred in finding that the appellant's blood alcohol content at the time of the incident was .14. However, the primary judge's conclusion that the appellant was guilty of dangerous driving causing death did not depend on the figure being .14 rather than .12.

43 Grounds 2 and 3 as developed in oral submissions are, in essence, complaints that the primary judge failed to accord the appellant natural justice. The particulars to ground 3 are that the primary judge failed to address the appellant's exculpatory contentions at trial and failed to apply the proper test for determining whether the manner of the appellant's driving was dangerous in that he had no, or no proper, regard to what the appellant knew or ought reasonably to have known about the presence of the deceased on the road.

44 It is the case that, on its literal meaning, ground 2 in the single judge appeal is confined to the appropriateness of the approach taken by the magistrate to his task. It is not in terms a claim that the magistrate erred in failing to find beyond reasonable doubt that the appellant was, at the time of the incident, driving his vehicle in a manner dangerous to the public or to any person. However, a review of the transcript of the hearing of the single judge appeal confirms that the parties understood that to be the real focus of ground 2.

45 On the other hand, there is no proper basis on which the appellant could reasonably have understood that the primary judge intended to make findings that were inconsistent with or went beyond the primary factual findings of the magistrate. Counsel for the State had informed the primary judge at the hearing of the single judge appeal that the findings of fact made by the magistrate were not in dispute (ts 25). Further, the State did not formally or informally request the primary judge to make additional findings of fact on matters on which the State bore the onus. The parties were not put on notice of the primary judge's intentions in that regard.

46 Moreover, the appellant was not given notice that the primary judge intended to make findings as to the manner of driving which departed from the State case at trial.

47 The appellant has established that the primary judge failed to comply with the rules of natural justice in material respects. However, this appeal will not be upheld unless the appellant is able to establish that it was open to the magistrate to conclude, on the unchallenged factual findings he made, that the State had not proved its case against the appellant. That raises questions of law relating to the proper construction of the dangerous driving provisions of the Act. In particular, what is the relevance, if any, of the influence of alcohol in the manner of driving limb of the offence.

48 I propose to commence with a consideration of the authorities on the meaning of driving a motor vehicle 'in a manner ... that is, having regard to all the circumstances of the case, dangerous to the public or to any person'. The leading High Court authorities on the topic are Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 and McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44. Both concern s 52A of the Crimes Act 1900 (NSW), on which the current relevant provisions of the Act are based. I considered the principles arising from these cases in McPherson v Lucas [2008] WASCA 56 [20] - [33]. The facts in McPherson were closer to McBride than Jiminez. That is not so in this case.

49 In Jiminez the appellant was in his vehicle travelling from the Gold Coast in Queensland to Sydney. He took over driving the car at about 3.30 am. About two and a half hours later the car he was driving failed to take a moderate right-hand curve in the highway and collided with a tree killing one of the passengers in the car. There was evidence that the appellant lost control of the car when he fell asleep at the wheel. The time during which he was asleep and the short period thereafter when he was confronted with an emergency did not constitute dangerous driving. The issue was whether the appellant could be guilty of driving in a manner dangerous to the public because of his tired and drowsy condition immediately before falling asleep at the wheel. The majority (Mason CJ, Brennan, Deane, Dawson, Toohey & Gaudron JJ) 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 for the purposes of s 52A 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, including the occupants of the motor vehicle, then his driving in that condition constitutes driving in a manner dangerous to the public (579). (emphasis added)

50 The relevant issue was whether the driver was so tired that, in the circumstances, his driving was a danger to the public (580). The High Court in Jiminez cited with approval the statement of King CJ in R v Kroon (1990) 52 A Crim R 15 that, if a driver who knew or ought to know that there is a significant risk of falling asleep at the wheel continues to drive the vehicle, he is plainly driving without due care and may be driving in a manner dangerous to the public (18). However, on my reading of the joint judgment, it is not an element of the offence that the driver knew or ought to have known of the significant risk of falling asleep at the wheel. Rather, the state of and basis for the driver's knowledge may provide the foundation for a defence of honest and reasonable mistake (581 - 583).

51 The important point to be drawn from Jiminez is that the cognitive condition of the driver can itself, without more, fall within the 'manner' of driving. If the state of tiredness of a driver can itself constitute dangerous driving then, putting statutory construction issues to one side, so too can alcohol intoxication. In both cases, it is a question of degree: Pfeiffer v The Queen (Unreported, SACCA, 11 December 1990); R v Greenham (1997) 25 MVR 495.

52 In R v Greenham the degree of the appellant's intoxication itself constituted the dangerous manner of driving. The car being driven by the appellant, who had a blood alcohol content of .25, left the road and overturned.

53 Alcohol intoxication may also be relevant to the drawing of inferences as to the existence of other deficiencies in the manner (quality) of driving, including being so inattentive as to be a danger to the public or failing to take evasive action to avoid an incident: Smith v The Queen [1976] WAR 97; R v Leaf-Milham (1987) 47 SASR 499.

54 In Leaf-Milham the appellant, with a blood alcohol content of around .08, drove at a speed of 100 kph along a dark narrow street near a hotel on a Friday night when patrons were leaving it and about to cross the road in numbers. The appellant's car struck and killed a pedestrian. There was ample opportunity for the driver to see the victim well before the collision. His level of intoxication was relevant to resolving a conflict in the evidence as to the speed of the vehicle and the driver's failure to see the pedestrian when others in his car did so.

55 Moreover, it is often the case that the incident in which the motor vehicle is involved can be relied on by the prosecution to provide evidence from which the quality of the driving may be inferred: McBride (50 - 51); Leaf-Milham. This can overlap with, but is conceptually separate from, issues of causation.

56 Barwick CJ in McBride also emphasised the need to avoid treating the manner of driving limb as an issue of negligence as between the driver and the victim. He noted:

In the case of a charge under the section that the vehicle was at the time of impact being driven by a person under the influence of intoxicating liquor, or of a drug, the same problems do not arise. Even in the case where the offence charged involves driving at a speed which is dangerous to the public, the relationship of the speed to danger to the public will be more readily seen. But where it is the manner of driving, an expression which can cover a wide and diverse set of facts, it is not enough that the vehicle as driven by the accused has caused death or injury and the accused was negligent, even in some glaring respect (51).

57 In this case, deficiencies in the quality of the appellant's driving cannot be deduced from the incident or from the movement of the car (its speed or change of lane) immediately before the incident. The State conceded in this appeal, correctly in my view, that absent the appellant's intoxication, his manner of driving would not be characterised as dangerous in all the circumstances. It was certainly not established that the circumstances were such that a (sober) driver in the appellant's position on the road should have moderated their driving behaviour because he should have appreciated the presence or possible presence of a pedestrian on the road well before the incident. The State's case based on the appellant's failure to keep a proper lookout must fail on the magistrate's findings.

58 Moreover, the magistrate was correct to conclude that the objectively observable manifestations of the appellant's driving at the time of the incident did not support an inference beyond reasonable doubt that he was under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle (ts 6 - 7, 12/1). That being the case, there are two theoretical alternatives.

59 The first is that the appellant's blood alcohol content was itself sufficient to support a finding beyond reasonable doubt that he was under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. The expert evidence fell short of establishing that proposition. In any event, the State did not run its case in that way and it is not open for it to do so now. Accordingly it is unnecessary to determine whether, as a matter of construction, s 59(1)(a) covers the field if alcohol intoxication is the only basis for characterising the manner of driving as dangerous.

60 The only other alternative would require a finding based on Professor Joyce's evidence that the appellant's capacity to safely drive must have been impaired to such an extent that, in the circumstances, it was dangerous to drive at a speed of between 72 - 75 kph and weave between traffic (the alternative approach). That is, the combination of factors (blood alcohol content, speed and the lane change) would render the quality of the driving dangerous. In my view such an analysis is open in principle on the proper construction of s 59(1)(b).

61 It was not the approach taken by the magistrate. On my reading of his reasons, the magistrate came to his conclusion because (1) the deeming provision was not triggered; (2) Professor Joyce did not give evidence that the appellant was by virtue of the influence of alcohol incapable of controlling his vehicle; (3) the objective manifestations of the appellant's manner of driving did not support an inference of incapacity to control the vehicle; (4) the prosecution had not established that the appellant was failing to keep a proper lookout; and (5) the remaining aspects of the appellant's quality of driving were not themselves dangerous in the circumstances.

62 However, the prosecution did not rely on the alternative approach. It relied on a failure to keep a proper lookout whilst travelling at speed and with a blood alcohol content of 0.12 to establish that the manner of driving was dangerous. This did not depend on establishing the actual extent of the appellant's alcohol impairment. It was the fact of alcohol impairment, together with the speed, that the State relied on to make the failure to keep a proper lookout dangerous, not merely negligent. No reliance was placed on the change of lane. That omission is critical.

63 For the reasons discussed below, it is the change of lane that is central to any causation analysis. In all the circumstances, it is not open to the respondent in this appeal to rely on the alternative approach. Fairness to the appellant required that he have notice at trial of everything the State relied on to establish that his manner of driving was 'dangerous' because he bears the onus of proving that the death was not in any way attributable thereto.

64 In any event, I am not persuaded that Professor Joyce's evidence compels a finding that the appellant's capacity to safely drive was impaired to such an extent as to render his speed and manoeuvring dangerous when that would not otherwise be the case. Professor Joyce's evidence as to the effect of alcohol was generalised. He accepted that the degree of alcohol-caused impairment of capacity is individualised but was not asked about the appellant's actual driving capacity having regard to the objective manifestations of his driving behaviour at the time of the incident.

65 Thus the appellant's appeal against conviction must succeed. However, I propose to address the issue of causation on the assumption that a finding of dangerous driving was compelled by the evidence in order to highlight the importance of the change of lanes.

66 The defence in s 59B(6) of the Act uses the expression 'in any way attributable'. That expression was picked up from the New South Wales legislation on which the Amendment Act is based.

67 As previously noted, the former s 59(1) required the State to prove beyond reasonable doubt that the accused caused the death of a person by driving a motor vehicle in a manner which was dangerous to the public. In those circumstances, the criminal law test of causation applied. That test was discussed in Krakouer v The State of Western Australia [2006] WASCA 81:

Causation involves questions of fact and law. Insofar as it is a question of fact, it must be determined on the evidence. An act or omission will be a factual cause if it is a necessary condition of the damage (in this case, death). This involves the application of the 'but for' test: would the deceased's death have occurred 'but for' the applicant's conduct ...

...

An act or omission that is, or is deemed to be, a factual cause of death, is a necessary but not of itself sufficient condition of criminal liability. The act or omission must also satisfy the legal test of causation which is used as a filtering device to narrow the unacceptably wide net cast by the test of factual causation. The legal test of causation is that the act or omission must have substantially or significantly contributed to the relevant event: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 [75] - [77].

68 Under the current Act, the driver carries the burden of establishing, on the balance of probabilities, that the death occasioned by the incident was not in any way attributable to (relevantly) the dangerous manner in which the motor vehicle was driven.

69 The court was not referred by the parties to any authority that has considered the meaning of the expression 'in any way attributable'. The legislative intention would appear to be to pick up the civil law test of causation. That test, adapted to the framework of s 59B(6)(b), would be that a driver is liable only if the dangerous manner in which the motor vehicle was driven caused, or materially contributed, to the death. The dangerous driving need not be the sole or predominant cause of the loss. It is sufficient if it is a cause: March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. Causation also involves two distinct inquiries in civil law. The first concerns the factual test which is ordinarily determined by the application of the 'but for' test. The second involves the legal question of whether, and if so to what extent, a defendant should in law be responsible for the consequences of his or her dangerous driving.

70 The explanatory memorandum for the Amendment Act states:

The use of the words 'in any way attributable', in [s 59B(6)] means that if death ... was in part attributable to the influence of drugs or alcohol [and, I interpolate, 'or the manner of driving'] and partly attributable to some other factor, then the defence will not be made out.

71 That is consistent with the civil law test. The expression was considered by the New South Wales Court of Criminal Appeal in R v Ganderton (Unreported, NSWCCA, 17 September 1998). The appellant was the driver of a van carrying eight passengers. His blood alcohol content at the relevant time was between .16 and .227. The appellant slowed the vehicle from 60 kph to 40 kph to negotiate a turn in the course of which it overturned. The appellant wanted to withdraw his plea of

guilty to dangerous driving to run a defence that the movement of his passengers caused the van to overturn. He was permitted to do so. As to the meaning of the expression 'in any way attributable to' the majority said:

We assume in favour of the Crown, without deciding, that the phrase 'attributable to' involves the same concepts as apply generally in the law in relation to causality.

Under this approach, the words 'in any way' serve only to emphasise that the influence of alcohol is not to be excluded as a cause merely because it is (in the circumstances of the particular case) a concurrent or an indirect cause of the harm suffered.

The authorities cited ... illustrate the well-settled principle that a cause is not disqualified as such merely because it is concurrent with one or more other causes or because it is an indirect cause. That however, is not to say that every factor which has contributed in a causative sense to the event is a cause for legal purposes. That the event would not have happened 'but for' the factor in question does not necessarily decide the matter. The 'but for' test ... is neither a necessary nor a sufficient test of causality in all circumstances. In particular, a later causative factor may displace an earlier factor as a cause of the event (novus actus interveniens). A normative judgment is involved.

72 On the assumption of a finding of dangerous driving on the alternative approach, the 'but for' test would be satisfied. The movement of the appellant's vehicle from the right-hand lane to the left-hand lane was a necessary condition of the death and thus satisfies the 'but for' test. The appellant's speed alone does not. If the appellant's driving capacity was in fact substantially impaired by the influence of alcohol, that movement from the right to the left-hand lane at speed in circumstances where his view of the road ahead was obscured by the white car in front of him would satisfy the legal test of causation. Moreover, the test of causation would be established even if the deceased's actions contributed to the incident.

73 For these reasons I would allow the appeal and set aside the conviction and other orders made by the primary judge. Accordingly, the judgment of acquittal entered by the magistrate will stand. As a consequence it is also necessary to set aside the sentence imposed by the magistrate for the offence.

74 BUSS JA: I agree with the orders proposed by McLure P. Subject to one observation, I agree generally with her Honour's reasons. The

qualification relates to her Honour's examination of the defence in s 59B(6) of the Road Traffic Act 1974 (WA) and her conclusion that the test of causation under that provision is consistent with the civil law test. It is unnecessary, in the present case, to examine or decide upon these issues. I reserve my position in relation to them.

75 MAZZA JA: I have read in draft the reasons of McLure P. I respectfully agree with them except for one reservation. That reservation concerns her Honour's construction of the expression 'in any way attributable' in s 59B(6) of the Road Traffic Act 1974 (WA) and whether that expression picks up the civil law test of causation. In the circumstances of this case, it is not, in my opinion, necessary to decide this issue. It is a matter for another day.