Local Court of New South Wales CITATION: P v Adrian Norman McIlwrick [2010] NSWLC 5 JURISDICTION: Criminal PARTIES: NSW Police Adrian Norman McIIwrick FILE NUMBER: PLACE OF HEARING: Bega Local Court DATE OF DECISION: 03/02/2010 MAGISTRATE: Magistrate Bone CATCHWORDS: Drive motor vehicle in a manner dangerous to the public,negligent driving, onus of proof LEGISLATION CITED: Road Transport (Safety and Traffic Management) Act 1999 McBride vs. R. (115 CLR 44) Pope v. Hall (30 SASR 78) CASES CITED: R. v. Hoffman (unreported NSWCCA) 2nd December 1963 R. v. Spurge 1961 2QB 205 Sik v. Lajos 1962 SASR 146 Hayes v. Swain 1975 RTR 40 TEXTS CITED: In Howie & Johnson Criminal Practice and Procedure NSW Peter Gillies, Criminal Law REPRESENTATION: Sgt. M. Chaplin, police prosecutor Mr. P. Thompson, solicitor ORDERS: The accused is found not guilty of; Drive Manner Dangerous. The accused is found guilty of Negligent Driving. Reasons for Decision 1 It is alleged against Adrian Norman McIlwrick that he drive a motor vehicle in a manner dangerous to the public at Narrabarba on 20th May, 2008. It is alleged in the alternative that he drove the vehicle negligently. The accused has pleaded not guilty to those charges. He has pleaded guilty to six minor matters relating to his use of the vehicle but which have no relevance to the quality of his driving The facts 2 The facts of the case are straight-forward and may be stated as follows. 3 Imlay Road is a sealed road which runs off the Princes Highway south of Eden and goes through in a westerly direction to Bombala. The road has one lane in each direction, it is in terrain which is generally undulating and well-vegetated. The road is frequently used by heavy vehicles, particularly vehicles carrying logs. It was described by a witness as a road on which "if you don't know it, you need to be careful". The witness indicated that the verges were narrow, there were steep drop-offs and it was hilly and winding. 4 At about 7.15am on 20th May, 2008, Danny Williams was driving a truck with a load of machinery in a westerly direction (i.e. away from the Princes Highway). He was approaching the bottom of a hill known as Anteater Hill. He noticed a log truck coming towards him. The log truck was travelling very fast and the trailer was starting to tip over. The truck went quickly to its left in an obvious move to miss Mr. Williams. The truck went past Mr. Williams and Mr. Williams then saw it collide with a following truck being driven by Alan Hite. 5 After the log truck had passed Mr. Williams, its lean became more pronounced. Mr. Hite, who was driving an unladen truck, moved as far to his left as he could but the trailer of the log truck tipped over and there was a collision. Nobody was injured. 6 The log truck, which had been driven by the accused, was inspected carefully by Peter Bache, an experienced vehicle registration inspector with the Roads and Traffic Authority. Mr. Bache explained (and his evidence on this point was subsequently corroborated by the accused) the braking system used on a prime mover towing a trailer. There are three separate brakes which a driver can utilise. The first is the engine brake, the second is the foot brake and the third is the trailer brake. Mr. Bache indicated that only the foot brake was effective and that a driver would have been fully aware of the brake problems as soon as the brakes were used. 7 The accused gave a statement to police and he gave evidence. With one or two minor exceptions, his statement and his evidence were the same. His evidence was as follows. He was born in 1967 and began driving heavy vehicles when he was seventeen. He has driven semi-trailers, B-doubles and road trains. He had worked for a logging company in the Eden area for four or five months prior to the day of the incident. He had, in the course of that employment, driving logging trucks on the Mt. Imlay Road once or twice a day. That company went into liquidation and the accused looked for a new job. He found one with the owner of the vehicle he was driving on the day of the incident. It was his first day with his new employer. He met another employee at Eden at around 5.30am. They were driving to Cooma where the accused had been advised he would be told about his new position and given appropriate information and directions. As they were travelling along Imlay Road a truck from his new employee's company pulled them up. This truck, going in an easterly direction, was being driven by "the boss's son". The rig consisted of a prime mover and two trailers (i.e. a B-double). The driver was taking a load of logs to a depot on the Princes Highway. The driver told the accused that there had been a change of plans and asked the accused if he could take the logs to the depot and then ring Cooma for further directions. The accused agreed. He asked the driver if there were any problems with the truck, the driver said "no" and the accused set out. 8 The accused gave detailed evidence as to the operation of brakes on a B-double. The engine brake (sometimes called the jake brake) requires the driver to use a switch and then regulate the speed of the vehicle by the use of the gears. The prime mover brake requires the driver to use a foot-brake. The trailer brake requires the driver to use a lever on the steering column. 9 The accused travelled a few kilometres without any necessity to use the brakes. He then reached the top of a hill leading down to the crossing over Imlay Creek. As he was going down that hill he realised that "the engine brake didn't seem to be working that well" and that the prime mover brake seemed to be "OK but not 100%". The accused decided that he needed to stop. He knew that the road along which he was travelling was relatively narrow, had narrow verges and steep drop-offs, carried quite a lot of heavy traffic, had very few places where it was safe or practicable to stop a heavy vehicle, and decided to pull up at a spot near the eastern end of Imlay Road. That stop was, by his rough estimate, about twenty kilometres further on. 10 After leaving Imlay Creek, the road is relatively flat until the top of Anteater Hill is reached. The accused travelled along at a speed which he said was "eighty, eighty odd" and "seventy, eighty, ninety". He travelled at "pretty much the speed I normally go". As he started to go down Anteater Hill, he applied the engine brake. It did not seem to be steadying the truck so he applied the trailer brake. That had little effect so he applied the prime mover brake. That steadied him a little but the vehicle picked up speed to such an extent that he had little control, he saw the two on-coming trucks, he tried to go as far to his left as he could but, after passing the first truck, all he could do was "hang on". Statutory provisions 42 Section 42 of the Road Transport (Safety and Traffic management) Act states: (1) A person must not drive a motor vehicle negligently on a road or road related area. (2) A person must not drive a motor vehicle furiously, recklessly or at a speed or in a manner dangerous to the public, on a road or road related area. Legal principles 11 Onus and standard of proof: in order to have the accused convicted, the prosecution must establish beyond any reasonable doubt that he is guilty 12 The concept of dangerous driving: In McBride vs. R. (115 CLR 44) Barwick, CJ, said that dangerous driving " imports a quality in the …………… manner of driving which either intrinsically in all the 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 " 13 His Honour later said: " 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 …………… so serious as to be in reality and not speculatively, potentially dangerous to others." 14 In the South Australian case of Pope v. Hall (30 SASR 78), Wells, J. said: " It is now well settled that if driving in a manner which was dangerous …………… is to be proved, it must be demonstrated that, in all the circumstances, the impeached driving passed beyond the point where it represented a mere departure - and nothing more serious - from the rules of the ordinary highway code, and became so serious a departure from those rules that the manner …………… of the driving created a wholly unacceptable and unwarranted danger to the life, or limb, or both, of road users ". 15 The concept of negligent driving: although the expression "negligent driving" has been in common use for many years, it remains somewhat difficult to provide a precise definition of the term. In Howie & Johnson's "Criminal Practice and Procedure NSW" the authors state at para 13-30,505.5: "Negligent driving is difficult to reduce to a set of rules. It covers a multitude of sins. It relates to the circumstances of the occasion. What would constitute the offence in one instance would pass without censure in another". 16 Peter Gillies, author of "Criminal Law" states that negligence may be viewed as conduct which creates a risk of harm to a person or to property, the risk being unjustifiable. He states that a person is negligent if her or she "fails to exercise such care, skill or foresight as a reasonable man in his (or her) situation would exercise". 17 Relevance of a vehicle's condition to a charge of dangerous or negligent driving: the condition of a vehicle is a factor which a court should take into account when considering whether a motorist has committed such an offence (a defect could also give rise to a defence and this is considered below). In R. v. Hoffman (unreported NSWCCA 2nd December, 1963), the Court of Criminal Appeal was considering a case stated by a District Court Judge who had heard a matter in which a truck involved in a collision on Pittwater Road had been travelling quickly and, in addition, had front tyres which were devoid of tread pattern. Herron, C. J., said: "Manner of driving includes, we hold, all matters connected with the management and control of a motor car when it is being driven ………. " 18 He went on to say: "If one adds to those facts that the front tyres of the car were devoid of tread pattern which would add to the difficulty of manouvering it or driving it safely ………. Then it seems to us that there was evidence of a circumstantial nature sufficient clearly to raise prima facie evidence of guilt." 19 Mechanical defect: A motorist is not guilty of an offence relating to the manner of his or her driving if the motorist is deprived of control of a vehicle because of some defect unless the motorist knew of the defect or could have known of the defect if he or she had exercised reasonable prudence (see, e.g., R. v. Spurge 1961 2QB 205, Sik v. Lajos 1962 SASR 146). A motorist whose vehicle has been regularly serviced is entitle to assume, in the absence of some indication to the contrary, that the vehicle has been properly serviced (Hayes v. Swain 1975 RTR 40). A defence based upon the issue of mechanical defect does not have to be considered by a court unless the issue arises in the case but once the issue has arisen it is the prosecution's responsibility to negative it beyond reasonable doubt if a conviction is to be recorded (see R. v. Spurge) Conclusion 20 There is no evidence to suggest that the accused had any knowledge that the brakes on his vehicle were defective until he began the descent to Imlay Creek. It was submitted by the prosecution that the accused was negligent in not inspecting his rig before setting out. It is the evidence of Mr. Bache that a person with some knowledge of mechanics would have spotted a problem with the braking system if the person had inspected the vehicle. I do not agree that the accused's failure to make an inspection was blame-worthy. He understood that the vehicle had been driven quite a long distance that morning before he was asked to drive it and he made a specific inquiry of the driver. 21 The prosecution does not submit that the accused's manner of driving was blame-worthy as he came down Anteater Hill - it is obvious that his inability to control his vehicle came about as the result of a mechanical defect. It does, however, submit that his behaviour was blame-worthy in that, once he became aware of the mechanical defect as he came down the hill to Imlay Creek, he should not have continued with his journey. The defence submits that it was impracticable to stop his vehicle before the parking area which the accused had in mind. 22 It is easy to have a deal of sympathy for the accused. He started work for a new employer at 5.30am, he was expecting to receive appropriate instructions and information about his new job, he was then unexpectedly thrust straight into a vehicle he had never seen or driven before and five minutes later he realised he was driving a laden B-double with defective brakes. There was a moment in the hearing which was profound. The accused had been examined in chief and was well into his cross-examination. He is a quiet and mild-mannered man. He was asked a question and he became unexpectedly animated. He said "I'm going to have my say". Nobody objected or tried to stop him. He then went on to describe how much the collision and the wait for the hearing had affected him. It was straight from the heart. After he had had his say, he went back to answering questions as he had before. 23 The fact is, however, that by the time he had crossed Imlay Creek the accused knew that he was driving a fully laden heavy vehicle with defective brakes. He knew the road and he knew that Anteater Hill was ahead. It was, in my opinion, incumbent upon him to stop his vehicle before he came to that hill if it was reasonably practicable to do so. In addition to the evidence which I have already described, the court viewed a video. The video was taken from a camera installed in a police vehicle driven by Sgt. Abbott. The officer drove along Imlay Road and followed the route which had been taken by the accused. A deal of the cross-examination of the accused concentrated upon the stretch of road between Imlay Creek and the top of Anteater Hill. 24 It was suggested to the accused in cross-examination that he could have pulled up at any one of a number of sites along that stretch of roadway. It was, in my opinion, impracticable for him to do so at some of the sites to which his attention was directed. One or two, just off the road, were relatively short and narrow and were adjacent to sections of the road on which there were double unbroken centre lines. There were, however, two places at which the accused might well have stopped. The first was a straight and quite long stretch of road. The accused may well have been able to come to a halt in his lane. Vehicles coming from either direction would have been inconvenienced but would have had good vision of the accused's vehicle. The second place was much more practical for a stop. A minor road called Anteater's Hill Road leaves Imlay Road just prior to the descent down Anteater Hill. It is clearly marked and was known to the accused. There is room to park a heavy vehicle well off Imlay Road in that place. At worst, the vehicle might present some inconvenience to traffic that might be found on the minor road. 25 As previously indicated, it was incumbent upon the accused to stop his vehicle before he came to Anteater Hill if it was reasonably practicable to do so. I accept that it was practicable for him to have stopped at Anteater Hill Road. This omission on his part was blame-worthy. The issue is now to determine whether the accused's conduct constitutes dangerous driving or negligent driving. Did his conduct constitute so serious a departure from the traffic rules that it created a wholly unacceptable and unwarranted danger to the life, or limb, or both, of road users (dangerous driving) or did it amount to something less, namely, a failure to exercise such care, skill or foresight as a reasonable man in his situation would have exercised (negligent driving)? The accused was in a relatively remote area and driving the largest and heaviest rig which can be driven in the state. He had negotiated one hill despite the condition of the brakes. Had he been driving in a busy area (say Parramatta Road) at peak hour there would have been only one reasonable decision to make - to pull up immediately and stay put until appropriate attention was given to his vehicle. To do otherwise would be to create a wholly unacceptable and unwarranted danger to the life, or limb, or both, of road users. A driver in a similarly defective vehicle in the middle of the outback would not create a wholly unacceptable and unwarranted danger to the life, or limb, or both, of road users if he failed to stop immediately. In all of the circumstances in which the accused found himself, I am not satisfied that his failure to stop amounted to dangerous driving but it did amount to negligent driving. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.