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."