Lecren, Jonassen Lennard Kerr v Slater, Gregory Robert [1998] TRIBUNAL NI 1

SUPREME COURT OF NORFOLK ISLAND CRIMINAL LAW – driving offences – appeal against conviction for driving in a manner dangerous to the public – whether absence of evidence as to traffic that might have been reasonably expected on the road in question meant there was no evidence upon which the Court of Petty Sessions could find charge proved -–whether sentence harsh and oppressive. Road Traffic Act 1982, ss 30, 46, 47

Kingman v Seager [1938] 1 KB 397, considered The King v Coventry (1938) 59 CLR 633, considered McBride v The Queen (1966) 115 CLR 44, applied R v Carter [1959] VR 105, considered JONASSEN LENNARD KERR LECREN V GREGORY ROBERT SLATER SC 4 of 1996 JUDGE: BEAUMONT CJ. PLACE: SYDNEY (Heard on Norfolk Island) DATE: 4 SEPTEMBER 1998

IN THE SUPREME COURT

OF NORFOLK ISLAND SC 4 of 1996

BETWEEN: JONASSEN LENNARD KERR LECREN

AND: GREGORY ROBERT SLATER

JUDGE: BEAUMONT CJ.

DATE OF ORDER: 4 SEPTEMBER 1998

WHERE MADE: SYDNEY

ORDERS: 1. The appeal is dismissed

IN THE SUPREME COURT No. SC 4 of 1996

OF NORFOLK ISLAND IN THE MATTER of an appeal from the Court of Petty Sessions

BETWEEN: JONASSEN LENNARD KERR LECREN Appellant

AND: GREGORY ROBERT SLATER Respondent

REASONS FOR JUDGMENT BEAUMONT CJ: INTRODUCTION The appellant appeals from his conviction and from the penalty imposed by the Court of Petty Sessions for an offence against s 30(c) of the Road Traffic Act 1982 for driving in a manner dangerous to the public at about 10.30 p.m. on 7 June 1996. Section 30 provides relevantly, that a person who drives a motor vehicle on a road – "(c)…in a manner which is dangerous to the public, having regard to all the circumstances of the case including – (d) the nature, condition and use of the road; and (e) the amount of traffic which – (i) is actually at the time; or (ii) might reasonably be expected to be, on the road. Is liable on conviction-…" The appellant does not seek to challenge any of the findings of primary fact made by the learned Magistrates. His contention is that even on those findings, he should not have been convicted as a matter of law. Before going to the facts, it will be convenient to refer to the applicable legal principles in this area. The nature of this offence has been explained in a number of decided cases. In Kingman v Seager [1938] 1 KB 397, it was held that the offence is complete if potential danger to traffic which might reasonably be expected to be on the road is proved. It is unnecessary to establish actual damage to any member of the public. Humphreys J said (at 400-1): "Could any one, using ordinary common sense and the word 'dangerous' in its ordinary meaning, say that such a speed for such a vehicle across a cross road and round a bend was not a dangerous speed? Such a speed in such circumstances must be dangerous. Whatever was the amount of traffic actually on the road at the material time, there might reasonably be expected to be a considerable volume of traffic on it. I understand the finding of the justices to mean that a speed cannot be 'dangerous' unless some element of actual danger is proved. That is wrong. The danger to which the section refers is to be found in the speed itself. A speed which is perfectly lawful may be found to be dangerous in certain circumstances, and when the speed is found to be at times double the lawful speed on a road such as one is dealing with in the present case, it is obvious that there can be no justification for the justices declining to find that a speed has been proved which was in itself a dangerous speed. Where the speed at which a vehicle is driven is in itself a dangerous speed, no other circumstance need be taken into consideration." Kingman was followed and the objective nature of the offence was emphasised, in The King v Coventry (1938) 59 CLR 633. Latham CJ, Rich, Dixon and McTiernan JJ (at 637-8) said that "…indifference to consequences is not an essential element [in the charge]…. The driver may have honestly believed that he was driving very carefully, and yet may be guilty of driving in a manner which is dangerous to the public…. The standard is an objective standard… [and] is impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles". Their Honours went on to say, dissenting from a contrary view expressed in the Full Court of the Supreme Court of South Australia (at 638-9): "It is, in our opinion, wrong to exclude an act or omission from 'manner of driving' because it is casual or transitory in some senses in which these somewhat flexible words may be understood. Such an exclusion may even suggest that carelessness or inattention may constitute a defence to a charge under the relevant provision of the section. Sudden, even though mistaken acting in a critical situation may not, in all the circumstances of a case, constitute driving to the danger of the public. But casual behaviour on the roads and momentary lapses of attention, if they result in danger to the public, are not outside the prohibition of that provision merely because they are casual or momentary. Further, 'manner of driving' includes, in our opinion, all matters connected with the management and control of a car by a driver when it is being driven. It includes starting and stopping, signalling or failing to signal, and sounding a warning or failing to sound a warning, as well as other matters affecting the speed at which and the course in which the car is driven." Starke J said (at 639): "The offence is established if it be proved that the acts of the driver create a danger, real or potential, to the public. Advertence to the danger on the part of the driver is not essential; all that is essential is proof that the acts of the driver constitute danger, real or potential, to the public. But whether such danger exists depends upon all the circumstances of the case, e.g., the character and condition of the roadway, the amount and nature of the traffic that might be expected, the speed of the motor vehicle, the observance of traffic signals, the condition of the driver's car, especially if he knew, for instance, that his brakes were out of order and so forth." Starke J went on to say (at 640): "The passage [in the Supreme court judgment] is a little obscure. 'A manner of driving involves' it is said 'more than a casual or transitory act or omission. It involves a course of conduct although not necessarily for any considerable period.' If this means that a person is not driving in a manner dangerous to the public if some emergency arises which could not have been anticipated or foreseen, then the observation may be well founded. Again, it is said that a failure to give a signal or to sound a warning could hardly be described as a manner of driving. But I should have thought that the happening of some emergency that could not have been anticipated or foreseen or the non-observance of the ordinary signals and warnings of the road might be one of the circumstances that could be considered in determining whether a motor vehicle was being driven in a manner dangerous to the public." A similar approach, expressed in somewhat different language, was adopted by Barwick CJ in McBride v The Queen (1966) 115 CLR 44 (at 49-50): "The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place." [emphasis added] His Honour went on to say (at 50): "A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of that section. This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others." It has also been held that driving in a manner dangerous to the public may occur although only one person was actually endangered. In R v Carter [1959] VR 105, in a prosecution for driving in a manner dangerous to the public, the Crown alleged that the accused deliberately drove her vehicle at a pedestrian. Sholl J said (at 106): "There is evidence from constable Thornton that at the time of the alleged offence, which was early on a Sunday morning in the winter time, there was no traffic in Swanston Street anywhere in the neighbourhood, no parked cars, and that the only persons present were himself, the accused and Spyrou. It occurred to me that it might be possible to contend that in those circumstances there could be no offence under s 318 if it could be said that there was no public to which the driving of the accused could have been dangerous at the time. On consideration, however, I think it impossible to uphold that view. Spyrou was after all a member of the public and, as Mr. Moore pointed out to me yesterday, had the accused mistaken someone else for Spyrou and driven the car at him there could have been no doubt that that could constitute driving in a manner dangerous to the public."

THE PROCEEDINGS IN THE COURT OF PETTY SESSIONS The prosecution's case in the Court of Petty Sessions consisted of the evidence of two police officers and another driver. The appellant also gave evidence. The evidence was described by the learned Magistrates, and their findings were expressed, to the following effect: On that night, the appellant drove his utility vehicle from the compound area at Kingston, travelled along Bay Street, Pier Street, Country Road and Taylor's Road. These are roads open to, and used by, the public. The appellant maintained in his evidence that he travelled at the speed limit throughout. The two police constables, on the other hand, each stated in their evidence that they observed the appellant travelling faster than the speed limit of 25 km per hour turning from Bay Street into Pier Street and along Pier Street to the cattle grid, and faster than the speed limit of 50 km per hour which applied on the other side of the cattle grid in Pier Street. Both police said that they then followed the utility in the police vehicle along Pier Street and some distance along Country Road. Constable Slater estimated that the speed of the utility at this stage to be not less than 80 km per hour. Constable Westwood said that he looked at the police vehicle's speedometer and noticed that the needle was between sixty and eighty. The police vehicle was not able to catch up with the utility (due to another incident on the road) and lost sight of it when it was in the vicinity of the corner near water mill dam. The police vehicle continued up Taylor's Road, passing a mini bus driven by Thomas Peter Jacobson on that part of Taylor's Road near the Reynold's house, where the area flattens and visibility is satisfactory. Mr Jacobson said, in his evidence, that the appellant passed him at speed on the wrong side of the road, whilst the appellant's view of the forward road was hampered by a sharp bend in the road. [emphasis added] The appellant claimed, in his testimony, that because there were no reflection of head lights of an oncoming vehicle, it was safe to drive in this manner. But the Court of Petty Sessions did not accept this, holding that the offence of driving in a manner dangerous to the public includes actual or potential danger: the road where the appellant passed Mr Jacobson followed a lazy 's', with a straight section of approximately 75 metres; and the head lights of any oncoming traffic would not, the Petty Sessions Court held, be visible to the appellant until both Mr Jacobson and the appellant had partially turned the bottom corner. This is a blind corner, so that the head lights of any vehicle would be difficult to see, the Court found, because reflections of the vehicles driven by Mr Jacobson and the appellant illuminated the banks of the cutting. The head lights of any oncoming vehicle would only be visible, it was held, when it had turned the top corner of the 's' bend, less than 75 metres away. Also, the Magistrates observed, an oncoming vehicle may have head light failure; moreover, there may have been pedestrians on the road as that particular cutting does not allow good off-road access to pedestrians. The Court of Petty Sessions went on to note Mr Jacobson's evidence that, in his assessment of the situation, he was then put in a position of potential danger. Mr Jacobson had approximately forty years driving experience, and many years' involvement with a fleet of vehicles and could be considered an independent witness. Since his assessment of the situation was more likely to be accurate than that of the appellant, who had been licensed only eighteen months, it was concluded that the appellant's driving constituted the offence of driving in a manner dangerous to the public. It was further found that the appellant had driven "well above" the speed limit along Pier Street, Country Road, and Taylor's Road. THE GROUNDS OF THE APPEAL AGAINST CONVICTION The appellant seeks to challenge his conviction on several grounds, i.e. that there was no evidence upon which the Court of Petty Sessions could find the offence proved; that the conviction was against the evidence and the weight of the evidence; and that the Court of Petty Sessions erred in applying the law to the facts found. The appeal was argued on the evidence disclosed in the transcript of the proceedings before the Court of Petty Sessions, so that no further evidence was called on the appeal. CONCLUSIONS ON THE APPEAL AGAINST CONVICTION It will be convenient to deal with the grounds of appeal separately.

(a) Was there no evidence upon which the Court below could find the charge proved? In developing this ground of appeal, Mr Cook QC submitted that there was no specific evidence as to the traffic that might reasonably be expected on Taylor's Road at the material time. Mr Cook argued that the Crown did not seek to lead any evidence from a competent witness, for instance, a police officer, on the question whether any traffic might then reasonably be expected, and if so, what that traffic might be. In my opinion, the appellant's arguments should not be accepted. It is clear from the original meaning of the language of s 30(c), as explained in the authorities previously discussed, that it is an ingredient of the offence that, in determining whether the driving was in a manner which was dangerous to the public, regard is to be had to all the circumstances; and that it is in the light of all the circumstances that the characterisation of the manner of driving as dangerous to the public must be made if there is to be a conviction. As Barwick CJ observed in the passage cited from McBride, the manner of driving can either be intrinsically dangerous, or because of the particular circumstances it can be "in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway". [emphasis added] In my opinion, the Court of Petty Sessions was justified in its conclusion that the offence charged was proved, either because the driving was intrinsically dangerous or because it was potentially dangerous in the circumstances, or both. The evidence proved, beyond reasonable doubt, that the appellant overtook Mr Jacobson in a situation that was potentially dangerous to anybody on the road at the time, including but not limited to, Mr Jacobson and the appellant himself. The potential danger arose from the circumstances, first, that the overtaking took place on a bend, when the appellant's vision was necessarily restricted and secondly, in the absence of the appellant sounding any warning of his intention to overtake. In those undisputed circumstances, in my view there was no need for the Crown to call specific evidence to prove that the appellant failed to meet, in the area concerned, the objective test in question. It was sufficient, for present purposes, for the prosecution to demonstrate, as the evidence did, the circumstances in which the overtaking actually took place previously mentioned. From that material of itself, it was clearly open to the Court of Petty Sessions to convict. (b) Was the conviction, against the evidence and the weight of the evidence? For the reasons given in (a) above, this submission also cannot be accepted.

(c) Did the Court of Petty Sessions err in applying the fact to the law? Likewise, for the reasons given in (a) above, there was in my opinion no error in the approach taken by the learned Magistrates. In my view, they correctly addressed the question of law raised by the provisions of the statute. Their conclusion was, as I have said, clearly open on the unchallenged primary facts. THE APPEAL AGAINST SENTENCE The Court of Petty Sessions fined the appellant six hundred dollars. In the case of a first conviction, as this was, the maximum penalty was a fine not exceeding $1,500 or imprisonment for a term not exceeding four months, or both (s 30(f)). The Court of Petty Sessions also ordered that the appellant be disqualified from driving for three months. Section 46 of the Road Traffic Act provides for disqualification from holding a licence where a person is convicted of a "major driving offence" (as this was). It provides: "46(1)Subject to subsection (2), where a person is convicted of a major driving offence, the Court which convicts him shall, in addition to any other penalty it imposes in respect of that offence – (a) order him to be disqualified from holding or obtaining a learners licence or a drivers licence; and (b) cancel the operation of any recognised licence he holds or may hold in Norfolk Island, for such period, being not less than 3 months, as the Court thinks fit." Section 46(2) provides: "(2) Notwithstanding subsection (1), if the convicted person satisfies the court that there are special circumstances why the provisions of that subsection should not apply to him, the Court may – (a) substitute a period shorter than the 3 months; or (b) not apply the provisions of that subsection in respect of that convicted person." Having ordered his disqualification, the Court of Petty Sessions adjourned the matter so that an immediate application could be made under s 47. Under that provision, the Court may vary the disqualification by ordering the grant of a special licence for employment purposes. This application was then granted. In the appeal against sentence, Mr Cook contended that, overall, the appeal against sentence was harsh and excessive given in particular, the appellant's age and his previous good record. Were it not for the existence of the power of variation under s 47 and the circumstance of its exercise here, there might conceivably have been some foundation for an argument that the Court of Petty Sessions should have exercised its discretion under s 46(2) and reduced the period of disqualification to less than three months. But when the exercise of the s 47 power is taken into account, no substantial ground for complaint against the penalty remains. In those circumstances, in my opinion, there is no warrant for appellate interference with the exercise of the sentencing discretion here.

ORDERS The appeal is dismissed. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Beaumont

Associate:

Dated: 4 September 1998

Counsel for Applicant: A. Cook QC

Counsel for Respondent: G. Gray

Date of Hearing: 24 August 1998

Date of Judgment: 4 September 1998