R v Manahan [2000] QCA 382

Ferguson Cannon Lawyers for the applicant/appellant

Director of Public Prosecutions (Queensland) for the

[1] McPHERSON JA: I agree with the reasons of White J for dismissing this appeal against conviction. I also agree with her Honour's proposal for disposing of the application for leave to appeal against sentence. The sentence should be varied as she has suggested.

[2] WHITE J: The appellant was convicted by a jury in the District Court at Maroochydore on 15 August 2000 of driving dangerously and thereby causing grievous bodily harm pursuant to s 328A of the Criminal Code. He was sentenced on that day to two years imprisonment suspended after six months for a period of three years and disqualified from holding or obtaining a driver's licence for 18 months. He appeals against his conviction and seeks leave to appeal against sentence on the ground that it is manifestly excessive.

[3] The appellant's vehicle, which was on the wrong side of the road, crashed into an oncoming motor vehicle driven by Anthony Blakemore on the Bruce Highway at Cooroy on 19 January 1993. Mr Blakemore sustained such serious injuries that he was in a coma for five months and will continue to be paralysed from the neck down with a very limited ability to communicate. At trial there was an admission that grievous bodily harm had been caused as a consequence of the collision. The only issue at trial was whether the appellant's driving was dangerous.

[4] Mr MacSporran for the appellant argued only grounds 2 and 3 of the appeal, that the verdict was generally unsafe and unsatisfactory and, given some evidence that the vehicle driven by the appellant had a pre-existing mechanical defect which might have contributed to the collision, the jury might, if properly directed, have entertained a reasonable doubt that the collision was due to inattention by the appellant. Leave was given to add a new ground that the learned trial judge misdirected the jury in telling them, erroneously, that the appellant's vehicle had been on the incorrect side of the roadway for about 3.8 seconds prior to the collision.

[5] Of concern is the length of time which has elapsed between the collision and the trial. We were informed by Mr Weston for the Crown that a decision had been made to prefer no charge against the appellant but after further investigations and representations the matter was reconsidered and a summons was issued to the appellant on 1 October 1998, 5 years and 9 months after the collision. There is no explanation for the further delay in the matter coming to trial except that it is accepted that it is something for which the appellant bears no responsibility.

[6] At about 11.00 am on 19 January 1993 the appellant was driving his work vehicle, a six tonne Isuzu van along the Bruce Highway in a southerly direction towards Cooroy. A witness, Garraty, who joined the Bruce Highway in his utility and who followed the appellant's vehicle for about three and half to four kilometres noted nothing inappropriate about the van's progress. On the outskirts of the town a sign indicated a speed limit of sixty kilometres per hour, a change from the 100 kilometres per hour restriction previously prevailing. Mr Garraty noted that the van then slowed to a speed of less than sixty kilometres per hour. Shortly after this point the Bruce Highway curves fairly sharply to the left whilst slightly declining. Double lines were painted on the road. So far as the witness could say, the van appeared not to take the curve at all but proceeded straight ahead and crossed the double lines. Mr Garraty initially estimated the time from the moment he saw the van cross the double lines until impact with the motor vehicle driven by Mr Blakemore at four seconds. In cross-examination he estimated that the van had travelled about 15 metres on the incorrect side of the road before collision. Sergeant Taylor, one of the investigating police officers, gave evidence that a motor vehicle travelling at 50 kilometres per hour would travel 13.8 metres per second. The appellant's van was wholly on the incorrect side of the highway at the point of collision.

[7] Sergeant Taylor spoke to the appellant at the collision scene and tape recorded the conversation. In the course of that conversation the appellant, when asked what had happened, said:

"I didn't realise I was on the wrong side of the road at all. I don't , I, I think I went forward in my seat at the point of impact and I was only, my vision was directly on the top of the vehicle, I didn't notice what part of the road we were on at all..."

The appellant noted that he was the first vehicle in a line of traffic travelling south. In response to questions from Sergeant Taylor he said that the truck seemed to be handling alright and had no mechanical defect that he could notice. He was simply unable to explain how his vehicle was on the wrong side of the road.

[8] Sergeant Taylor had a second interview with the appellant two months later on 20 March 1993. When asked to describe what had happened the appellant said:

"I was in control of the vehicle in question, heading south on the Bruce Highway, entering Cooroy. I um reduced speed several hundred yards further north, in accordance with the traffic, speed regulatory marks. I reduced speed to approximately 50 kilometres per hour and on entering Cooroy outside the State School, attempted to make a left hand turn to follow the course of traffic, and the vehicle failed to do so. I then crossed over the other side of the road and struck an oncoming vehicle."

The appellant was asked to elaborate on the failure of the vehicle to negotiate the left hand bend. He said:

"No, it is um, the vehicle is um set up for a display purpose as a show for the items that I market. Um some of them are quite sensitive, there is some electronic gear in there and therefore I think the suspension on the vehicle is quite soft, so as not to cause any damage to the ....um it is not unusual for the vehicle to rock and bounce and I did not notice any, anything unusual in the action of the vehicle, only that I failed to follow the traffic, follow the road around to the left."

He was asked whether he could recall steering to the left and answered that he could recall entering the left hand bend and steering to the left.

"I, all I recall is the vehicle taking its natural course, it tends to drive a little bit in the corners and bounce, but that is all I recall, on entering that particular corner."

[9] He denied that there was any bang or grind from underneath the truck to indicate that something may have gone wrong and agreed that he had steered to the left but the truck did not go to the left. He went on to state that the first indication that he had that he was on the wrong side of the road was the oncoming vehicle which was not very close. He maintained that the corner was not "incredibly sharp" but the first thing he noticed was the roof of the vehicle, presumably of the oncoming car. He then said:

"I don't recall if I checked my, was checking my instruments, I noticed that I have attempted to make a turn, realised that I was not on my side of the road and then all my attention focused on the oncoming vehicle".

He was asked again by Sergeant Taylor whether he had attempted to make the turn and the vehicle did not and he responded affirmatively.

[10] Sergeant Carlton, a police mechanic with some 19 years experience, gave evidence that when he examined the appellant's truck he found that U bolts which attached the leaf suspension springs to the front axel were loose and moving backwards and forwards three to four inches. He concluded that this was the situation prior to impact and would pull the vehicle towards the right. He said that a driver would be constantly correcting the direction of the car by turning the steering wheel to the left but it would not be too difficult with power steering with which the van was equipped. In cross-examination he agreed that he had formed a clear view that the van had mechanical defects which might have contributed to the accident. On that evidence alone the jury might have been expected to have a doubt about the appellant's responsibility. However Dr Frank Grigg, an engineer with over twenty-five years experience in investigating motor vehicle accidents, including steering input, examined the police accident report and the photographs taken of the vehicle and concluded that the U bolts were not loose prior to impact and that none of the observable damage to the steering could have occurred prior to impact.

[11] Sergeant Ruller from the accident investigation squad, relying on the same material as Dr Grigg was unable to say unequivocally whether the damage to the steering mechanism occurred prior to or as a consequence of impact but agreed that the investigator who actually looks at a vehicle had an advantage over an expert who had only photographs. Dr Grigg accepted that proposition but only:

"if he's thinking about what he's seeing and trying to work out what it was about." R 101

Both Sergeant Carlton and Dr Grigg gave extensive evidence on whether there was any evidence to raise a doubt about the steering being impaired prior to impact. Each took an opposite position. Dr Grigg's qualifications were clearly superior to Sergeant Carlton's. The jury were entitled to prefer Dr Grigg's evidence. They would not necessarily have been left in the state of doubt which the High Court considered was the case in Chamberlain v The Queen (No 2) [1984] HCA 7; (1983) 153 CLR 521. Gibbs CJ and Mason J agreed with the following passage from the judgment of Jenkinson J in the Full Federal Court at p 558 of their Honours' joint reasons.

"The reasoning by which other expert witnesses criticised the conclusions of Professor Boettcher and Professor Niarn, as well as the reasoning by which the latter two witnesses supported those conclusions and criticised the conclusions of the others, were all matters for the jury's evaluation. But in my opinion no juror could reasonably have failed to acknowledge that, reason as he might, he was not in a position to assure himself of the correctness of a conclusion against the opinions of the two professors to the degree which would eliminate reasonable doubt as to that conclusion."

[12] Furthermore, the jury here had the benefit of the additional evidence of the two records of interview with the appellant. It was a matter for them to decide whether he was so shocked immediately following the collision that he overlooked mentioning that his vehicle had failed to respond to his steering to the left as an explanation for being on the wrong side of the road. The jury were entitled, on a proper consideration of all the evidence, to conclude that he had been momentarily inattentive. This is sufficient to satisfy the test for dangerous driving.

"If a driver in fact adopts a manner of driving which the jury thinks was dangerous to other road users in all the circumstances, then on the issue of guilt it matters not whether he was deliberately reckless, careless, momentarily inattentive or even doing his incompetent best."

R v Evans [1963] 1QB 412 at 418. See also McBride v The Queen [1966] HCA 22; (1965-1966) 115 CLR 44.

[13] The final ground of appeal is that his Honour misdirected the jury when he told them that the appellant's vehicle had been on the incorrect side of the roadway for about 3.8 seconds. There is no dispute that a reference to 3.8 seconds is erroneous and it is not at all clear where his Honour obtained that figure. The evidence from the witness who followed the appellant's van was that the appellant's vehicle had travelled for a distance of about 15 metres on the incorrect side of the road before the collision. Sergeant Taylor estimated from road marks that it had travelled between 10 and 20 metres. The van was likely travelling at about 50 kilometres per hour and was therefore on the incorrect side of the highway for about one second prior to the collision. The passage complained of in the summing up occurred in a re-direction sought by defence counsel concerning the evidence of Sergeants Ruller and Carlton about the looseness of the U bolt. His Honour said:

"You have also the evidence that Mr Parker [counsel for the defence] emphasised to you, that the distance if you like over which the vehicle began to move from its correct side of the roadway to the incorrect side of the roadway up to the point of impact, was not particularly far and the time frame would have been fairly short.

I think he spoke of something in the order of 3.8 seconds, I have just forgotten the arithmetic that he spoke of. But it is not a particularly long period of time. By the same token of course, if you accept the evidence of the marks on the road, the truck was not just a little distance over the centre line but was right over the centre line when the impact occurred. So you have got all those factors. You have got the relatively short time frame from where it began to go to the wrong side of the road to where the impact occurred. You have got the fact that it was right on the incorrect side of the road. You have got Mr Garraty's [the following witness] evidence, all that evidence." R 141

[14] Defence counsel did not seek any correction of the mention of a period of 3.8 seconds although he took the opportunity in the absence of the jury to express some concerns about the summing up generally which is not now a ground of appeal which is pursued. When the error as to time is considered with the qualifications by his Honour that he may have that time wrong it assumes much less importance. In my view, the appellant was not wrongly deprived of a fair chance of acquittal by that error.

[15] When all the evidence which was before the jury is considered there is no basis for a conclusion that its verdict was unsafe and unsatisfactory and I would dismiss the appeal against conviction.

[16] As to sentence, the applicant was born on 1 December 1966 which would have made him 27 at the time of the collision and 33 at the time of trial. He had no previous criminal convictions and a minor traffic history the only entry of which was relied upon by the Crown was a failure to stop at a stop sign in June 1992 for which he was fined $130 and lost 3 points. The Crown case was conducted on the basis that the applicant brought about the collision by momentary intention. The prosecutor referred the court to Harris CA No 161 of 1999 and handed up a schedule of sentences for dangerous driving offences. The prosecutor indicated that the range included both non-custodial and custodial terms including an intensive correction order

[17] His Honour was told by defence counsel that as a result of this event the appellant had come under severe financial pressure and ultimately had lost his business. He obtained other employment in various places and finally in Sydney where he had settled having obtained steady employment prior to trial. He had an excellent work record and hitherto an unblemished character. He was in a stable defacto relationship and planned to marry in November 2000. He has a young son of three years from that relationship.

[18] Mr Weston has conceded that the sentence is on the high side. His Honour had the report from Dr Rowland Noakes describing the grave injuries sustained by Mr Blakemore which resulted in him being in a coma for five months and permanently bedridden with spastic paralysis such that he was unable to move or swallow and had to be fed through a tube. He was able to make limited eye contact and display some awareness of events going on about him. His injuries would have been fatal without prompt medical attention. His Honour had a statement from Mr Blakemore's father. The grief, pain and bitterness which he expressed on behalf of himself and his wife at the virtual loss of their son and grandchild (because the marriage failed and the former wife resided interstate) is very poignant. The parents are likely to be Mr Blakemore's only visitors. They see him daily in his nursing home and are constantly reminded of their loss. Their attention to their son has caused them immense financial hardship.

[19] Harris was an Attorney-General's appeal against the inadequacy of a penalty of twelve months imprisonment to be served by way of an intensive correction order in the community and a disqualification from holding a driver's licence for a period of two years. At the time of the offence the driver was twenty years of age, held only a learner's permit and, contrary to the law, was driving unsupervised by a licensed driver. He had some prior criminal history including for breaking and entering with intent some three years earlier for which a community service order had been made. The cause of the collision appeared to be substantial speed together with inadequate lookout over a short period of time but, as was commented by the Chief Justice (who dissented), not momentarily. The victims were a husband and wife on their way to work. The wife was killed and the husband suffered serious potentially fatal injuries which involved him being hospitalised for six weeks. There was no alcohol involved. Thomas JA observed that:

"In a case such as this it becomes very important to identify the level of seriousness of the actual driving of the offender."

Reference was made to Anderson's case, another Attorney-General's appeal, CA No 284 of 1998, which suggested that dangerous driving causing serious personal injury or death does not inevitably lead to a custodial term. Thomas JA observed that such a result must be quite rare when much harm has resulted. The Chief Justice noted that deterrence was a weighty consideration. He considered that the circumstances of speed and inattention, other than momentarily, by an unlicensed driver with an otherwise blemished record causing two victims death and serious injury respectively, called for the imposition of a term of actual imprisonment.

[20] The consequences of the dangerous driving have been devastating to Mr Blakemore and to his family but it is important for the sentencing court not to be overwhelmed by that single factor in considering the appropriate sentence. That may have been the case here. His Honour rightly highlighted the need for drivers on busy roads to be vigilant at all times. Although his Honour made brief reference to the delay in prosecuting the charge he may not have given it the weight which it deserved. It is a particularly undesirable outcome that a person should be allowed to reconstruct his life over a period of five years before a charge is laid against him. It is even more undesirable that a further delay of some two years before the trial of the action should occur. In a very serious case of dangerous driving this may not assume much significance but here his Honour would appear not to have given due weight to the nature of the wrongful conduct by the appellant, namely, his momentary inattention in the context of otherwise appropriate driving. This is a factor which was regarded as significant in the dissenting judgment of the Chief Justice in Harris. When all of the factors to which his Honour should have had regard are taken into account it would appear that in imposing a term of imprisonment actually to be served his Honour was too harsh.

[21] In my view an appropriate penalty was that which was imposed but the period of imprisonment ought to have been wholly suspended. The applicant has been in prison since his sentence on 15 August 2000. I would grant the application and allow the appeal and vary the sentence imposed below as indicated and order that the applicant be released forthwith.

[22] JONES J: I agree with the reasons of White J and with the orders proposed.