Official prosecution - Whether Official Prosecutions (Defendants' Costs) Act applies to appeals against sentence

Official Prosecutions (Defendants' Costs) Act 1973 s 4, s 5

Road Traffic Act 1974 s 59A(1)

Sentencing Act 1995 s 39(2), s 45(1)

Appeal allowed in part by reducing disqualification from 2 years to 1 year

Baker v Bushell, unreported; SCt of WA; 27 July 1988

Forbes v Durant [1999] WASCA 85

Fox v The Queen, unreported; FCt SCt of WA; Library No 920061; 3 February 1992

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Perry v Stark (1990) 12 MVR 515

Plenty v Bargain [1999] WASCA 67

R v Tognini & McGuire [2000] WASCA 31

Richards v Faulls Pty Ltd [1971] WAR 129

Robinson v Cook & Ors, unreported; SCt of WA; 12 October 1988

The Queen v Tait (1979) 46 FLR 386

Woods v Webb, unreported; SCt of WA; Library No 8147; 19 March 1990

1 PIDGEON AUJ : This is an appeal from the decision of his Worship K M Boothman SM, in the Court of Petty Sessions at Joondalup where the appellant pleaded guilty to a complaint that on 1 July at Ballajura he caused bodily harm to Raymond Ernest Hunt by driving a vehicle on a road, namely Summerlakes Parade, in a manner that was, having regard to all the circumstances, dangerous to the public or any person. To that offence he pleaded guilty. His Worship imposed a fine of $1500 and made an order that the appellant's licence be suspended for 2 years and that he be disqualified for that time from obtaining a licence. His Worship refused an application to make a spent conviction.

2 The grounds of appeal do not bring into question the amount of the fine. The grounds of appeal relate to two questions, namely, the length of the suspension and whether or not there should be a spent conviction. I will deal firstly with the length of the suspension. It was a suspension for 2 years but there is a minimum time required of 1 year.

3 The facts relating to the accident were that on the morning of 1 July the appellant was driving his father's vehicle, which was a Subaru WRX and which was a four-wheel drive vehicle. The appellant is 20 years old. He has had a licence for 3 years. He has his own vehicle, which is a geared vehicle, but from time to time his father does permit him to drive the father's vehicle and on this occasion he was driving it, doing some job he was asked to do.

4 He approached that portion of the road where there is a bend to the left. The road was wet and the facts given to the learned Magistrate were that he was travelling in a 60 kilometre per hour zone but that he was travelling between 60 and 70 kilometres per hour. That is what his Worship was informed and the appellant accepts that. As the appellant attempted to negotiate the left-hand bend, the rear of his vehicle began to slide, and that is the start of what turned out to be a very tragic accident. That is the first thing that went wrong, the rear of his vehicle began to slide. When that occurred, the appellant changed down a gear and accelerated. The appellant then attempted to straighten the vehicle but he over-corrected. He then braked heavily and this resulted in the vehicle crossing to the incorrect side of the road. This put him in the path of an approaching Holden FJ sedan travelling in the opposite direction and they collided. As a result of the collision, the driver of the Holden vehicle received some facial lacerations, ligament damage to his knees, a chipped bone in his right ankle and bruising to the chest. That was the bodily harm for which the appellant admitted responsibility by driving in this dangerous manner.

5 I think two matters become important. It was a tragic accident and it is of concern that another citizen did receive injuries of this type, but it must be remembered, when a court is judging a matter of this type, that the court is not dealing with an offender who has deliberately caused those injuries. It would be an entirely different situation if injuries of that type were intentionally and deliberately caused by an offender. We are not dealing with that situation. We are dealing with a situation where it has been caused unintentionally but by an act that is contrary to the law, namely, the dangerous driving of a vehicle.

6 In order to judge the situation, it is necessary to judge the culpability of the actual deliberate act that put in train the events which ultimately caused the injuries. If the deliberate act was an act of deliberately driving at a high speed, deliberately taking risks, being under the influence of alcohol, then acts of that type would give rise to much greater culpability than would arise if the basic act was mere inattention. It is necessary, therefore, to look at the basic act. If that act was the taking of a wilful and deliberate risk, then of course the offence is a more serious one. It is an offence of reckless driving. Here we are looking at conduct that is not in the category of reckless driving but is in the category of dangerous driving.

7 The circumstances were that it was a wet road and that does give rise to the need for special precautions to be taken. It becomes a little difficult to see why a vehicle of this type did start to slide on a road of this type. It could be speed, and I will come to that. His Worship I think did infer that it was speed. If it is not speed, then the only other explanation that I can see is the amount of water that was on the road. The appellant himself says he did not fully appreciate that water, but the test is whether a person taking full care should have seen the excessive amount of water and it does call for special precautions having regard to the water, having regard to the type of car that was being driven and having regard to the fact that the driver was not fully familiar with it. All those things go into the equation of what is it dangerous. That combination I consider does make it dangerous and the appellant was the first to admit that. He pleaded guilty to it. It is accepted that there was that dangerous situation but I would not see it as being at the higher level of dangerous driving. As I said, if it comes to recklessness, it is a different matter, but I consider that there can be dangerous driving at a higher level than what is before me and which would still fall short of recklessness so while it perhaps was not mere inattention, it was a little bit more than that nevertheless I do not see it coming into the highest category of dangerous driving. That is the first matter I think that is apparent.

8 The next matter that has become apparent, I consider, from his Worship's reasons is that it is a difficult question as to what caused this car to do what it did, but I consider his Worship, from the remarks that he made, considered that the only explanation open is that it was travelling at an excessive speed, higher than what he was told. What he was told as to speed was only an estimate from perhaps one other driver and if the facts are compelling, that all other factors point to the compelling inference that there must have been a high speed, then his Worship, I consider, can act on it. It may be that he would have to draw the parties' attention to the possibility that he intends to act on such an inference.

9 I think two factors were in his Worship's mind as being factors to cause the sliding. The first factor was speed. The second factor that would appear to be in his Worship's mind was the nature of the damage to the other car. His Worship did apply physics. The extent of the damage and the very nature of the damage led him to the view that the speed was higher than what he was originally told.

10 In my judgment, I do not consider that inference is open on these facts when one has in mind that it was not perhaps an actual head-on collision. Nevertheless two cars in opposing directions struck where each of them could be expected to be doing at least 60 km per hour and it was the type of collision that brought those cars to rest. I think the forces that would come into play are unknown to the extent that it would be very difficult for any ordinary person to be able to calculate the applied mathematics involved. It would be very difficult for a court to draw conclusions in the absence of expert evidence so I do not consider that the conclusion is open that it was excessive speed in the sense that the car was going significantly higher than 60 to 70 km per hour. I consider that his Worship's assessment was in error by reason of this.

11 There are two further matters that I feel have led to error in assessing the actual culpability. One of them was his Worship did say - it was an observation to counsel and one has to hesitate because observations to counsel are not normally part of the reasons but I consider that these observations were adopted in the reasons. His Worship did make reference to the fact that somebody, minding his own business, has had his face "bashed". That is terminology that rather suggests a deliberate action more than an action caused by circumstances that arose here. His Worship said that the other driver has had his ankle chipped, he has had chest injuries, because, and in referring to the appellant, his Worship said "this person goes around in a WRX and smashes straight into him on the wrong side of the road".

12 My interpretation of those words is that that it suggests that what the appellant did was a deliberate act. The appellant did not do that deliberately. He made an error, and a serious error, of judgment. His Worship said it is the behaviour of a disgraceful driver. In my judgment, I could not put the appellant's conduct in that category. Had there been deliberate speeding, high speeding, taking wilful risks, one could use that term of a "disgraceful driver" but I do not consider it is an appropriate term to use in the circumstances of this particular case.

13 The next area that I think does lead to error, is that his Worship said in his reasons to the appellant:

"You shouldn't have been out in the car in the first place in all likelihood to cause an accident such as this and the injuries that have been caused to the other person."

14 It is a little hard to determine what is meant by that. It is quite clear that the appellant was driving this car with his father's permission, carrying out an errand for his father. If it were the fact that his Worship's judgment was that a parent should not let a son drive a car of this type, that could not reflect in penalty.

15 What would reflect in penalty is that this type of car calls for special precautions but the fact that the parents should not have let the car out would not reflect in penalty. It would, in any event, seem to me reasonable to allow a son who has been driving for 3 years to take a car of this nature. I certainly could not reach the view that it would be wrong for a father to entrust a son during daylight with a car of this type. So I would consider that remark, whatever way we look at it, again indicates that there has been an error in assessing the ultimate culpability.

16 Here the suspension was double the minimum and was in excess of what the minimum suspensions would be for more serious offences. That of itself is, as I would see it, only a very small indicator. There could be circumstances of culpability here where it would be proper to go above the minimum suspensions on other offences but having regard to all the matters to which I have referred I consider his Worship was in error and based his assessment on the errors to which I have referred.

17 In my view it is a serious offence. Any form of dangerous driving, no matter what causes it, is serious. It is reflected in the penalty of $1500 and it is reflected in the licence suspension of 1 year which is a long suspension. But I consider that the appropriate penalty on the circumstances of this case would not exceed a year. There is nothing present here to justify a longer suspension. So I consider that the length of the suspension itself indicates error. In addition I consider there was an error in the assessment of the facts inasmuch as culpability was assessed at a higher degree than the facts of the offence call for. So I am satisfied that the suspension ought to be reduced to 1 year.

18 The next question I found a much harder question and that is whether this is an appropriate matter for a spent conviction. I consider that this is governed by the guideline judgment that was given in R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 and in particular in the passages that appear in the reasons of Murray J at pars 27 and 28 on p 297. These read:

"In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.

That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community."

19 It was submitted on behalf of the respondent that these considerations suggest that it is inappropriate to use the provisions for traffic offences. In my view these passages suggest that it is not normally appropriate to use the provisions of the Spent Convictions Act for traffic offences but there is no need for me to finally determine that question. I am satisfied that if ever it would be appropriate to use them for traffic offences it would be in the most exceptional circumstances.

20 I was addressed on the basis that the offence is highly unlikely to occur again. First of all it is very hard to say that the offence will not occur again. This was an offence that was a momentary one in the sense that it happened through an unfortunate set of circumstances and to say that that is not likely to occur again is, I feel, a little hard. Perhaps I will put it this way: it is not quite the terminology for traffic offences of this type. I think in some respects one would not expect it to happen again.

21 The next matter is the seriousness of the offence itself plays a part in it. If it was a serious criminal offence under the Criminal Code, or probably a Criminal Code offence of any description, that of itself would jeopardise employment and if there are exceptional circumstances where it would not be right to jeopardise employment, then one would consider a spent conviction.

22 I consider with a traffic offence the circumstances are different because traffic convictions would not normally jeopardise employment. I think it is unreal to say that it would jeopardise employment and it is an offence that can be explained. It is an offence that happened virtually as an accident with something in excess of almost momentary inattention that a mistake - "Perhaps a mistake was made when I was driving this vehicle. I let it get out of control." Once that explanation is given, then I would not see that as being likely to be prejudicing employment. The fact that the licence suspension is there, that of itself would have to be disclosed, would become known, so I do not see this type of offence causing the hardships that have been referred to and I consider it is one easily explained.

23 I think it is important that, what was said in the case referred to, it is a matter of record and I think that is of importance, particularly with traffic offences.

24 I would see a similar situation with applying for visas. This was referred to me. If one is in another country one might have to explain under the laws of that country what is the true situation. If one is applying for a visa in this State and it is a traffic offence that can be explained was caused through non-criminal activity or through non-criminal reasons, that would not, I would have expected, affect the visa. Again I think when dealing with other countries the fact that it is a matter of record is of importance.

25 Here I consider that his Worship was in error in not giving consideration to the application, for reasons that he said, when he was asked to do so but I substitute my own view here. If I were dealing with the situation I would not see it as an appropriate type of offence to be making spent conviction orders.

26 I do not consider that order ought to be made, but I do consider that the appeal should be allowed so as to reduce the suspension from 2 years to 1 year. I would allow the appeal to that extent.

27 The above reasons were delivered on 28 May 2001 when the matter was adjourned for written submissions as to costs. My decision as to the costs after considering the submissions are as follows. The respondent is a police officer so by reason of s 219 of the Justices Act 1902 no order of costs can be made against him. However the Official Prosecutions (Defendants' Costs) Act 1973 provides in s 5 that, subject to the Act, a successful defendant is entitled to his costs and the Act provides a means of obtaining those costs without ordering them to be paid by the respondent. Sub-section(4) of s 5 provides that where a defendant is successful by reason of the Appeal Court reversing a decision of the Summary Court, the Appeal Court shall make an order as to the amount of the costs in the Appeal Court.

28 It was submitted that the definition in subs (2) of s 4 limits the operation of the Act, on appeal, to cases where the conviction is quashed. The commencement of the interpretation section provides that the interpretation of the terms contained in the section applies "unless the contrary intention appears". In my view the governing provisions of the Act are those contained in s 5 which provides that a successful defendant is entitled to his costs and provides that an Appeal Court shall make an order as to the amount of costs in the Appeal. I would see this as a mandatory provision that when a defendant is successful the court must exercise its discretion and make an order relating to costs which could be in an appropriate case that there be no costs by reason of the court, in its discretion, considering that the successful party for some reason is not entitled to costs or it could be for an amount of costs. A successful defendant on appeal is entitled to the exercise of the court's discretion as to costs. To apply a definition that would have the effect that a defendant who brings an appeal against sentence only is excluded from the provisions of the section would be defeating the purpose of the Act. Section 5 itself indicates a contrary intention to the application of the definition.

29 The decision to suspend the license for 2 years was one of the decisions made by the learned Magistrate. The defendant has been successful in reversing that particular decision. I consider that he is entitled to an order of costs under subs (4).

30 The maximum under the scale is I am told in written submissions $2150 for the notice of appeal together with a fee for a one day hearing of $4600. The appellant obtained leave to appeal. It related to simple issues of fact relating to a sentence. The appeal was against two decisions of the learned Magistrate, one being the length of suspension, the other whether there should be a spent conviction. The appellant failed on the second. I would in these circumstances fix the sum at $2500. I would order that pursuant to the Official Prosecutions (Defendants' Costs) Act 1973 the appellant is entitled to the costs of the appeal fixed in the sum of $2500 and any court fees. It was not suggested nor would the appellant be entitled to any costs before the Court of Petty Sessions.