Criminal law - Appeal and application for leave to appeal - Driving without due care and attention - Whether error in convicting appellant - No point of principle

Road Traffic Act 1974 (WA), s 62

1 BEECH J: This is an application for leave to appeal and a hearing of an appeal by Mr Lumley against his conviction in the Magistrates Court of two traffic charges.

2 On 8 February 2007 the appellant was convicted of one charge of driving without due care and attention contrary to s 62 of the Road Traffic Act 1974 (WA) ("the RTA") and one charge of failing to give his name and address contrary to s 54(1) of the RTA.

3 The two charges arose from a collision between the Toyota Hi Ace van being driven by the appellant and a vehicle driven by Ms Erin Starky.

4 I will begin by outlining the evidence at trial, which will assist in consideration of the complaints made by the appellant as to his conviction on the two charges.

5 Ms Starky was called as a witness by the prosecution. The other witness called by the prosecution was a friend of Ms Starky's, Ms Jane Evans. The two were on their way to view a house they were considering renting together.

6 There was very little conflict between the evidence of the prosecution witnesses, on the one hand, and the appellant's evidence on the other hand, as regards the circumstances in which the collision occurred.

7 The appellant was driving his Toyota Hi Ace van in Boreham Street, Cottesloe. He was doing a work related delivery to an address in that street. He brought his car to a halt a little past the address to which he was going.

8 Ms Starky was travelling immediately behind the appellant in her Diahatsu Charade vehicle. She saw the van ahead of her come to a stop and brought her vehicle to a halt about one and a half metres behind the van.

9 Mr Lumley's van was packed with equipment that blocked the rear window, thereby blocking any view from the internal rear view mirror.

10 Mr Lumley checked both external side rear view mirrors of his van. He saw the car driven Ms Evans, but did not see the car driven by Ms Starky.

11 Seeing the reverse lights of the van come on, and seeing him reversing towards the vehicle, Ms Starky sounded her horn more than once.

13 There was some conflict in the evidence of Ms Starky and the appellant as regards the offence of failing to give name and address. The evidence of Ms Starky was that the appellant did not, at any time following the collision, give to her his name and address or any other information such as phone number. The evidence of the appellant was that he had said his name and phone number to Ms Starky.

14 Bearing in mind the brevity of the reasons and the grounds of appeal in this matter it is convenient to set out in full the Magistrate's reasons for decision in convicting the appellant in respect of both charges:

"HIS HONOUR: Yes, thank you. In relation to the matter, the facts (indistinct) are not in dispute, on diversion road, one would say. The accused is driving a truck and Ms Starky is in a smaller vehicle behind. I accept that there is a requirement to stay a certain distance behind when travelling, but I have to say it is a matter of practicality when you are on a road and vehicle has come to a halt. It's fair to say that probably a metre and a half, in itself, is not unreasonable - you just have to travel on the Narrows Bridge, or something like that, in peak hour traffic. It's not unusual to be a metre - a metre and a half behind vehicles. So that's an expectation.

A vehicle comes to a halt and you come up behind up, there is certainly a - it's not an expectation that the vehicle would start reversing, I have to say, in those circumstances. If you are going to do that - there is nothing stopping the vehicle from reversing, but if you do it you've got to have a degree of certainty that there is nobody behind you. Now you are driving a truck with limited visibility - the visibility is based on the side of the truck. If it's not within those parameters then you are not going to see it.

The reality is, in this case, there is always a strong likelihood or possibility of a smaller vehicle being behind you. Commence reversing in those circumstances, where effectively you are taking a guess, in this instance the evidence is she piped her horns a couple of times and that evidence is corroborated. It's been heard by a vehicle some distance back. Now, you don't say whether you heard it or not, but I mean - I'm satisfied of what (indistinct). So there was even a warning to you, Mr Lumley. In the circumstances where you continue to move, in my view that is showing lack of care.

I'm satisfied that in those circumstances - particularly given the size of your vehicle, the circumstances to reverse as you did, without a degree of certainty what was behind you - and it was at best - as I say, you were taking a best guess, created the present environment. Further, in relation to the matter, the evidence was from the witness that there was a heated argument.

I find it just simply implausible, given that heated argument, in the middle of that that you somehow say, 'Well my name's Bill Bloggs and here's my phone number.' I mean, for a start, what would the possibility of remembering a phone number in the middle of a heated argument - it would be nonsense, Mr Lumley, and I just find it implausible.

I'm satisfied both charges are proven."

15 The appellant appeared on his own behalf. He evidently did not receive any legal assistance in preparing the grounds of appeal. Thus, I do not mean any criticism of the appellant in observing that the grounds were not drafted in a way which identified, in a clear fashion, the point sought to be made by the appellant as to why the Magistrate's decision should be overturned. Taking into account the oral argument at the hearing of the matter, however, it seems to me possible to identify the essential complaints made by the appellant in respect of the Magistrate's decision and reasoning. I will not recite the terms of the grounds of the appeal. Rather, I will identify what I understood to be the essence of the relevant complaint.

Grounds 1 and 6 - was the driving of the appellant "without due care and attention"?

16 The appellant's primary complaint was that on the facts of the case his driving could not properly be said to be "without due care and attention" so that he ought not to have been convicted of the offence.

18 The test for driving without due care and attention was not in dispute. The test is an objective one. The question is whether the person charged exercised, at the relevant time, that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances: Geneff v Townsend [1970] WAR 20 at 21; Illich v Garvey [2001] WASCA 236; (2001) 34 MVR 88 at 95 - 96.

19 On the admitted facts in this case, the appellant reversed his car in circumstances where he could not see whether there was anything (whether another vehicle, a person or anything else) for some distance behind him on the road. The appellant argued that it was not reasonable to expect that he would get out of his car to look in the area behind his vehicle. However, in the circumstances, the appellant had options other than reversing or getting out of his car to check whether something was behind him. For example, he could have driven forward to another location where it was safe to reverse. I accept the respondent's submission that, as a general rule at least, a reasonable and prudent person driving a car ought not reverse it in circumstances when he or she cannot see for some distance behind the car. Further, there seems to me to be nothing in the particular circumstances of this case to take out it outside that general proposition.

20 For those reasons there is, in my opinion, no error in the finding of the Magistrate that the driving of the appellant amounted to driving "without due care and attention".

Grounds 2 and 4 - was the other vehicle "following too close"?

21 Both at his trial and his appeal the appellant argued that the driver of the car immediately behind him, Ms Starky, must have been following too close behind his vehicle. He suggested there was a rule of thumb to the effect that a driver should stay one car length away from the car in front of it for every 10 kilometres per hour of speed.

22 In my opinion, in the circumstances of this case, analysis of the distance between the vehicles while they were travelling along Boreham Street does not assist in the resolution of the charge of careless driving. It was common ground that both vehicles stopped. The Magistrate found that Ms Starky's vehicle came to a halt approximately one and a half metres behind the van driven by the appellant. The appellant did not, in his argument before me, seek to challenge that finding. The driving, on the part of the appellant, the subject matter of the charge was his reversing of his car.

23 The appellant may also have complained, in his submissions, that in bringing her car to a halt one and a half metres behind his car Ms Starky's driving was open to criticism. However, even if that were thought to be so, that would not establish any ground to overturn the finding of the Magistrate that the appellant's driving amounted to careless driving. The charge against the appellant directs attention to the quality of his driving in the circumstances of the case. To establish that another person's driving may have fallen short of standards of optimum driving in the circumstances is by no means inconsistent with a conclusion that the appellant drove without due care and attention. To the contrary, part of what is required by due care and attention is driving in a way which takes into account that other drivers may not drive in the ideal way in all situations.

24 For these reasons there is, in my opinion, no substance in the appellant's complaints to the effect that Ms Starky had followed too close behind his car.

25 In the course of giving his reasons the Magistrate made reference to Ms Starky's evidence, corroborated by the evidence of Ms Evans, that Ms Starky sounded her horn while the appellant was reversing his car.

26 The appellant complains that "nobody could hear with the noise [of the] road works going on".

27 It should, I think, be noticed that at trial the appellant was not asked any questions as regards the horn, either by the Magistrate, who questioned the appellant in the course of his examination-in-chief, or by the prosecutor during cross-examination.

28 In those circumstances it might be thought to have been unfair to the appellant for the Magistrate to have concluded, as he did, that "there was even a warning to ... Mr Lumley" and, "in the circumstances where you continue to move ... that is showing lack of care". Against this, it might be said that the appellant had heard the evidence of both Ms Starky and Ms Evans to the effect that Ms Starky had sounded her horn and Ms Evans had heard it, so that he had an opportunity to give evidence in relation to the horn had he wished to do so. That position would, I think, need to take into account that the appellant was not represented and that his evidence-in-chief proceeded by way of the Magistrate asking him a series of questions to which he responded. None of those questions directed his attention to the sounding of the horn.

29 In any event, even if there were unfairness in relation to reliance by the Magistrate upon the sounding of the horn, in my opinion that would not lead to the conclusion that the appeal in this case should be upheld. In deciding an appeal against conviction by a Magistrate, even if a ground of appeal might be decided in favour of an appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred: Criminal Appeals Act 2004 (WA), s 14(2).

30 An error will, generally at least, give rise to no substantial miscarriage of justice if the error could not reasonably be supposed to have influenced the result (Cronin v The Queen [2007] WASCA 159 at [39]; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300) or if the error "would, or at least should, have no effect on the verdict that was returned" (Saliba v Shepherd [2006] WASCA 228 at [33], Weiss at [43]).

31 Even if the Magistrate took into account the sounding of the horn in deciding that the appellant drove without due care and attention, and if he erred in so doing, any such error did not, in my opinion, cause a substantial miscarriage of justice. That is because on the admitted facts, leaving aside the sounding of the horn, the appellant was, in my opinion, plainly guilty of the offence of driving without due care and attention, for the reasons given in relation to grounds 1 and 6.

32 The appellant points to the reference, in two places in the Magistrate's reasons, to the appellant driving a truck. It was not in dispute that he was driving a Toyota Hi Ace van.

33 However, I accept the submission of the respondent that the learned Magistrate's error in using the word truck was not material to his reasoning in reaching his decision. In that regard it is relevant that the appellant had given clear and unchallenged evidence as to the dimensions of his van, as well as the approximate dimensions of the car being driven by Ms Starky. In those circumstances, the Magistrate's reference, in his reasons, to the size of the appellant's vehicle seems to me to have been a reference to that evidence. It does not reflect any misconception associated with the error in describing the vehicle driven by the appellant as a truck.

34 Thus, the Magistrate's error in describing the appellant's vehicle as a truck did not give rise to any substantial miscarriage of justice. In my opinion, this ground of appeal ought to be dismissed under s 14(2) of the Criminal Appeals Act.

Ground 3 - failing to give name and address

35 Part of ground 3, in its written form, appeared to complain of the appellant's conviction in relation to the charge of failing to give his name and address.

36 In convicting the appellant in relation to this charge, the Magistrate accepted the evidence of Ms Starky in preference to the evidence of the appellant. The Magistrate described the evidence of the appellant, in this respect, as implausible.

37 The appellant did not, in his submissions before me, advance any ground of complaint in relation to that factual finding. There is nothing in the materials before me, to warrant interfering with the Magistrate's findings. (As to the circumstances in which an appellate court will interfere with findings of fact based on the credibility of witnesses, see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [28] - [29].)

38 By s 27(2) of the Criminal Appeals Act, leave to appeal must not be given on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding. As to the meaning of "reasonable prospect of succeeding" see Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473, especially at [56].

39 With the exception of ground 5, for the reasons given, none of the grounds of appeal have reasonable prospects of success.

40 For the reasons given, I would refuse leave in relation to grounds 1 to 4 and 6, grant leave in relation to ground 5 but dismiss the appeal.