R v Davies [2000] NSWCCA 84

Reported Decision : [2000] 31 MVR 31

New South Wales Court of Criminal Appeal

CITATION : R v Davies [2000] NSWCCA 84 FILE NUMBER(S) : CCA 60500 of 1999 HEARING DATE(S) : 14 March 2000 JUDGMENT DATE : 4 April 2000

PARTIES : Regina Travers Jamie Davies JUDGMENT OF : Sheller JA at 1; Hulme J at 6; Dowd J at 75

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL Patten DCJ OFFICER :

COUNSEL : M Grogan - Crown P Byrne SC - Appellant SOLICITORS : SE O'Connor - Crown TA Murphy - Appellant

CASES CITED: R v Jurisic (1998) 45 NSWLR 209 R v Pyritz CCA 23.11.98 DECISION : Leave to appeal against sentence granted.; Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60500/99 SHELLER JA HULME J DOWD J

Tuesday, 4 April 2000

REGINA v Travers Jamie DAVIES

JUDGMENT

1 SHELLER JA: I have had the benefit of reading the judgments prepared in draft by Hulme and Dowd JJ. For reasons given by Hulme J, I agree that the appeal against conviction should be dismissed. 2 The stark facts of this case are that the appellant illegally drove through a red traffic light at a busy intersection where traffic in the lane to his right had stopped and at such a speed that he was unable to avoid hitting a pedestrian crossing the road in the pedestrian crossing. The pedestrian was a teenage school girl. She was thrown in the air by the impact and killed. 3 In his remarks on sentence, Judge Patten was satisfied that the appellant's conduct in driving through a red light into a pedestrian crossing in the circumstances constituted a piece of grossly irresponsible driving. This conclusion was clearly open. The appellant gave no evidence at the trial or on sentence. In his record of interview, he said that he was travelling at 60 kilometres per hour and as he got to the lights, the light was green. He saw a girl running from the right hand side, he turned the wheel to the left to swerve and applied the brakes. By the time he stopped the vehicle and turned around, the girl was lying on the ground and he ran back and tried to offer assistance. He said he was first aware that the light was green about 40 metres from the traffic lights and it did not change. 4 This record of interview was before the jury. Palpably the jury did not believe it. Why the appellant drove in such a senseless fashion through the red light cannot be known. But there is nothing to suggest that it was as a result of momentary inattention or misjudgment; compare R v Jurisic (1998) 45 NSWLR 209 at 231. The appellant pleaded not guilty and at no stage expressed to the sentencing Judge any contrition or remorse. Appropriately, the sentencing Judge took account of the evidence of other witnesses to find that the appellant was remorseful. These and other matters the Judge took into account in sentencing the appellant. I am conscious of the careful evaluation of these matters and other matters to which Hulme J has referred in coming to the conclusion that the sentence imposed is so unreasonable or unjust that this Court may infer that in some way there has been a failure properly to exercise the sentencing discretion; compare House v The King (1936) 55 CLR 499 at 505. I am not so persuaded. The purpose of s52A of the Crimes Act 1900 is to impose, through the courts, severe punishment for dangerous driving which kills. In Jurisic at 227 the Chief Justice said that the level of community concern about the conduct proscribed by s52A must be reflected in the sentences which trial courts impose. I see no reason in this case not to defer to the trial Judge's response to the appellant's conviction for the offence prescribed by s52A taking account particularly of the need for general deterrence. 5 In my opinion, and for the reasons set out by Dowd J in his judgment, leave to appeal against sentence should be granted but the appeal should be dismissed. 6 HULME J: On 12 July 1999 the abovenamed Appellant was convicted of a charge that on 28 October 1996 at Sylvania he drove a utility motor vehicle when it was involved in an impact occasioning the death of Natalie Martyn and at the time was driving the vehicle in a manner dangerous to another person or persons. 7 On 27 August 1999 Judge Patten sentenced the Appellant to imprisonment for a minimum of 18 months commencing on 27 August 1999 and an additional term of 18 months commencing on 27 February 2001. 8 The central issue in the trial was whether the Appellant drove through a red light at an intersection and pedestrian crossing. 9 The only issue raised on appeal is whether the verdict of the jury was, having regard to the evidence, unreasonable. The submission made on behalf of the Appellant is that it is a reasonable possibility that the traffic control light facing the Appellant at the time was green and therefore, that "there is a significant possibility that an innocent person has been convicted" - M v The Queen (1994) 181 CLR 487 at 494. 10 In this case the evidence certainly contained discrepancies, but the question is whether they were such as could not be resolved by the jury, for example, preferring some witnesses to others. 11 An appreciation of the evidence of those at the intersection at the time of the collision requires an understanding of the features of the intersection and of the operation of the traffic lights there. 12 The intersection was that of Port Hacking Road which runs north and south and Melrose Avenue which runs east and west. The Appellant was driving south in Port Hacking Road. There is a large traffic island running north and south in the middle of the intersection and traffic in Melrose Avenue travelling west is obstructed by this island and must turn left i.e. south. Traffic in Melrose Avenue travelling east towards the intersection may turn north or south into Port Hacking Road. The colour of the traffic light facing vehicles in that part of Melrose Avenue said nothing about the colour of the traffic lights facing vehicle south-bound in Port Hacking Road. 13 On the northern end of the intersection in Port Hacking Road there are three traffic lanes for traffic travelling north, a median strip and three further traffic lanes. Two of these run to the east of the traffic island to which I have referred, permitting traffic to continue to the south or turn left into Melrose Avenue. The third of these traffic lanes diverges right and runs between the median strip in the centre of Port Hacking Road and the traffic island. Vehicles travelling south but wishing to turn west into Melrose Avenue use this third lane. 14 The pedestrian crossing relevant to the present case runs from the north-west corner of the intersection to the traffic island, crossing the three north bound lanes in Port Hacking Road and this third lane. On the traffic island immediately adjacent to the crossing is a set of lights with a pedestrian control button and room to stand. The crossing then continues from the traffic island across the eastern two lanes of Port Hacking Road to the north-east corner of the intersection. 15 According to a surveyor called on behalf of the Appellant, the distance from the traffic control light on the north-western corner to the traffic control light on the traffic island was 17.49 metres. The distance from the north western kerb to the nearest kerb of the traffic island was 14.75 metres. The traffic island was 2.69 metres wide from the centre line of one crossing to the centre line of the other. The distance from the traffic control light on the island to the control light on the north-eastern corner was 8.27 metres. The distance from the eastern kerb of the traffic island in the middle of the crossing to the eastern kerb was 6.2 metres. 16 Other figures for some of these distances were given by a police officer called by the Crown but there was no radical difference between these witnesses and in any event there does not seem to be any doubt that the surveyor's figures are more accurate. 17 Pedestrians could stop the traffic in Port Hacking Road by means of buttons placed on the posts holding the lights. When this occurred, the pedestrian lights for someone moving from the north west to the traffic island had a green walk segment for between 6 and 8 seconds, depending on traffic conditions, and a flashing "don't walk" period of a further 14 seconds. At the same time the pedestrian lights between the traffic island and the north-eastern corner of the intersection had a 10 second green "walk" segment followed by a 10 second flashing "don't walk" segment. At the end of the respective flashing "don't walk" segments, "don't walk" would show continuously and the corresponding light controlling traffic flow would show green. Thus for a period of up to 2 seconds, there could be a green light for traffic travelling south in Port Hacking Road while the "don't walk" signs western side of the road were flashing and north-bound traffic was stopped. There were other circumstances when the light facing north-bound traffic could be red while that facing southbound traffic was green but if the light facing north-bound traffic was green, then so would be the light facing south-bound traffic. The timing of these pedestrian lights was changed on 12 August 1997 to increase the total period available for crossing by 9 seconds. 18 The RTA timing of lights proceeds on the basis of a walking speed of 1.2 metres per second, a speed at or above which 85% of the population walk. 20 seconds would thus allow (just) a full crossing of Port Hacking Road kerb to kerb if the pedestrian started immediately the green "walk" sign flashed. At the time of the accident with which the proceedings are concerned, the timing of the lights had been designed to allow movement from one footpath to the traffic island and then, on a subsequent operation of the lights, movement from the island to the other footpath. 19 The evidence as to what occurred at about the time of the collision was provided by a number of eye witnesses. 20 A Mr Hawkins was driving a garbage truck south in Port Hacking Road. He said that when he was about 50 metres away and travelling at about 20 kms per hour he observed the light facing him was red; he slowed down and stopped just short of the pedestrian crossing in the lane to the east of, but next to, the traffic island. This lane was referred to as lane 2. He said he was stationery for about 2 seconds and saw the deceased standing on the traffic island and then step off the island in front of his truck walking east. When she was about half way across the adjacent kerb side lane Mr Hawkins saw her struck by the Appellant's utility travelling, according to Mr Hawkins, against the red light. 21 The Appellant brought his vehicle to a stop some 20 metres past the intersection against the eastern kerb and Mr Hawkins said that at the time the vehicle pulled up he saw a light in the foreground, still red. He identified this light as one on the south-east corner of the intersection. There was in fact no light there. There were however 2 lights to Mr Hawkin's right on the traffic island, one of which was in front of him.. 22 Mr Hawkins described the deceased's walk as "striding" although he said that a fraction of a second before the impact, he observed a little "stutter" in her step, as if she had seen the car coming. Mr Hawkins did not reject the proposition that the deceased was about to start running. 23 There were some inconsistencies between Mr Hawkin's evidence and statements he had made to the police and in earlier proceedings. In evidence in chief Mr Hawkins said the deceased was inside the pedestrian crossing whereas in his original statement he had said that the deceased was walking across the road at a place well south of the pedestrian crossing, i.e. more towards the middle of the intersection. He had also earlier said that the deceased started to step off the traffic island while he was still moving. Mr Hawkins did agree that certain markings he had made on a map and photographs during committal proceedings were not reliable and his evidence given earlier as to where a pole was and where the deceased crossed also answered this description and that as time went on his recollection was faulty. Nevertheless the transcript indicates that he was firm on the question of seeing a red light immediately after the accident. 24 A Mr Howle said he was driving south in Port Hacking Road intending to turn right into Melrose Avenue. He just missed the green light and had to pull up between the median strip and the traffic island. He observed the deceased to his right on the north-west corner of the intersection activating the pedestrian button. She then crossed in front of Mr Howle in a walk he described both as "normal" and "ambling". He saw her pass in front of him, pass in front of the garbage truck on his left and pass out of his sight. He observed the pedestrian light to his right flashing and while doing so heard a heavy thud to his left. He then saw the deceased being half dragged half rolling underneath the vehicle. He then had a green arrow which allowed him to proceed into Melrose Avenue. 25 Mr Howle agreed that during the committal proceedings he had said that the red pedestrian light was flashing at the time the deceased walked in front of his car. He also remembered the deceased pushing the button and waiting for the green pedestrian light. He was certain that he was watching a flashing red pedestrian light when he heard the impact and was firm that he saw the back axle of the car pass over the deceased. Mr Howle's evidence as to the movements of the deceased's body following the impact is at odds with that given by every other witness on that topic. 26 Mr Carnio was driving south in Port Hacking Road in lane 2. He saw the rear stop lights of a truck he believed to be a cement truck come on when he was about 200 metres away from it. While still about 200 metres away he then noticed the lights on the traffic island to the right of and adjacent to the truck were red also. He saw the deceased who had also been adjacent to the lights walk in front of the truck from the traffic island and then walk out from in front of the truck. Mr Carnio did not see the actual impact - he suggested that he must have closed his eyes - but he did see the deceased "flying up in the air". However, the witness strongly disagreed with the suggestion that in the seconds leading up to the impact the traffic control lights facing the Appellant were not red. 27 A Mr McPhillips gave evidence that he was stopped at a red light in Melrose Avenue on the western side of Port Hacking Road waiting to turn left when the light facing him should turn green. After being stopped for, he guessed, 15 seconds he saw the deceased standing on the traffic island, step off it, take two or a few steps and collide with a white utility. The light facing him turned green after the impact. Mr McPhillips was not aware of any other traffic travelling in the same direction as the utility in the few seconds prior to the impact. Under cross examination he said he didn't know what the lights were doing at the time of impact. Mr McPhillips's evidence says nothing about the colour of the light facing the Appellant at any relevant time. 28 A Mr Weir was also waiting at the red traffic lights in Melrose Avenue. He was waiting to turn right and south into Port Hacking Road. The light changed to green, he turned into Port Hacking Road and about 5 to 10 seconds after turning, he heard a screech of brakes and a thud and saw a white utility and a person being propelled through the air in his rear vision mirror about 30-40 metres behind him. The 5 or 10 seconds may have been after making the turn or after leaving the kerb. Given the configuration of the intersection and the operation of the traffic lights, Mr Weir's evidence also says nothing about the colour of the light facing the Appellant. 29 There were two drivers who had approached the intersection from the south. One was a Detective Senior Sergeant Bamford who had been travelling in the lane nearest the median strip. He said that he first saw the deceased when he was 30-50 metres or a bit more away from the stop line closest to him. His recollection was that at that time the traffic light facing him was green. As he approached he saw the deceased probably on, but certainly in the vicinity of, the pedestrian crossing, saw her walk onto the median strip and continue on and pass in front of a stationery vehicle although he did not know whether in lane 2 or lane 3. Her walking was purposeful and at some stage she quickened her pace. She had her head down just prior to impact. Sergeant Bamford then saw the collision with the Appellant's vehicle in lane 1 of the south-bound side of the road. 30 Sergeant Bamford's recollection is that he was virtually at the stop line of his approach to the intersection at the time of impact. He saw the deceased catapulted through the air and land on the roadway. Shortly afterwards he spoke to the Appellant and said "Don't worry, I saw what happened. She ran straight in front of you" or words to that effect. At the intersection Sergeant Bamford slowed virtually to a stop but did not know what colour the light was at the time he passed thought the intersection. 31 The second driver on the north-bound side of the road was a Mr Pearson. He was in the middle lane and when about 100-150 metres north of the intersection he observed the lights facing him change to amber and later to red. He stopped at the red light. A vehicle pulled up in each of the lanes beside him. He observed the deceased standing on the north-west corner for a second or two and then that she commenced to cross the road in an unhurried fashion. Her speed did not alter. Mr Pearson observed the garbage truck, and the deceased almost in front of it, turned his head away, looked at the light controlling him (which was still red) and looked at something on his seat and then heard a thud. On looking to his right he observed the deceased airborne. By the time he looked ahead again his light was green. 32 In his ERISP the Appellant said that when he was travelling along the road, the garbage truck was slightly in front of him in the adjacent lane, travelling at about the same speed. He travelled through the intersection every day and knew that there were lights and a pedestrian crossing there. Although he could not see the lights to his right which were obscured by the garbage truck, he could see from some 40 metres away that the set on the footpath to his left was showing green. At the time the deceased emerged from in front of the garbage truck which had slowed down, she was running and looking to he right. The Appellant denied that there was anything which had distracted him prior to the collision. 33 The evidence of Sergeant Bamford clearly argues for the conclusion that the Appellant did not drive through a red light. It was submitted that Mr Pearson's evidence was to similar effect, particularly in what was said to be its implication that the drivers he referred to in adjacent lanes drove off before him. However I am unable to see that Mr Pearson's evidence does assist the Appellant. I do not see any justification for the implication to which I have referred and there is nothing in Mr Pearson's evidence to enable one to conclude that the light facing the Appellant was green when he arrived at the pedestrian crossing. Indeed, when combined with other evidence suggesting that the inspiration for traffic lights at the intersection being red was due to enable a pedestrian to cross the road, Mr Pearson's evidence is in conflict with the Appellant's statement in his ERISP that the light facing him as he approached the intersection was green. 34 Mr Howle's evidence is to similar effect although it does not permit of any conclusion as to the situation at the actual time of impact or when the Appellant entered upon the intersection. The same may perhaps be said of the evidence of Mr Carnio although his evidence is clear that at least almost up to the point of impact the Appellant faced a red light. 35 There remains the evidence of Mr Hawkins. It is clearly to the effect that the Appellant did go through a red light. 36 Despite Mr Hawkins' acceptance that some parts of his evidence were unreliable, ultimately the question of whether he should be believed on crucial issues was a question for the jury. So was the significance of the other evidence and whether the evidence of Sergeant Bamford caused them to have a reasonable doubt. The Appellant's submission in reliance on M v The Queen that because Sergeant Bamford's evidence and perhaps some other supported the Appellant's case and tended to undermine that of the Crown, "there is a significant possibility that an innocent person has been convicted" ignores the full text of what the High Court said in the passage from which those words are taken. The full passage reads:- "If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act an to set aside a verdict based upon that evidence." - M v The Queen (1994) 181 CLR 487 at 494. 37 It is not the law that because one or more witnesses, even witnesses whose evidence is not obviously subject to criticism, give evidence indicative of innocence, this Court is bound to set aside a verdict. Although there is nothing on the printed transcript to suggest it, Mr Hawkins for example may have been a far more impressive witness on vital matters than Sergeant Bamford. The need to make full allowance for the advantages enjoyed by the jury means that, in the circumstances of this case, this Court is in no position to substitute its view for that of the primary tribunal. 38 In any event, I am by no means persuaded that the evidence of Sergeant Bamford does not have its own problems. It is impossible to reconcile a number of the aspects of his evidence with that of many of the other witnesses. His evidence of seeing a green light and of the position of the deceased when he was 30-50 metres away from the intersection falls into this category. If Sergeant Bamford is correct, there would seem to have been no occasion for Mr Pearson to have been stopped at the intersection at all. 39 The appeal against conviction should be dismissed. 40 I turn to the application for leave to appeal against sentence. In the way the matter was presented to the jury, the jury's verdict means that the Appellant drove through a red light immediately before the impact with the deceased and that manner of driving constituted driving in a manner dangerous. It fell to the trial judge to decide other questions relevant to the topic of sentence. 41 His Honour's findings in this regard included the following:- (i). The intersection was well known to the Appellant. (ii). The traffic lights were visible to approaching vehicles for at least 200 yards. (iii). The Appellant was driving at between 50 and 60kms per hour compared with the applicable speed limit of 70kms per hour. (iv). The Appellant's speed did not diminish as he approached the lights notwithstanding the fact that during the course of his approach it should be inferred that they changed against him. (v). The Appellant must or should have seen the garbage truck pull to a stop beside him. 42 His Honour also said:- "It is true that none of the aggravating elements listed in Jurisic such as a high degree of speed, intoxication, erratic driving, et cetera, are present here, but the fact remains that the prisoner neglected to obey the requirements of traffic lights which were plainly visible to him for a considerable distance as a result of which Natalie Martin suffered a most tragic death." 43 There was no challenge to these findings although it seems to me that some qualification must be placed on the statement that "the traffic lights … were plainly visible to him for a considerable distance". If the relative positions of the garbage truck and the Appellant's motor vehicle were as the Appellant said - and Mr Carnio gives some support to the Appellant in this respect - it seems clear that the lights on the traffic island would have been obscured for some distance. There is, indeed no persuasive evidence that those lights were visible to the Appellant at any relevant time. Photographs in evidence of the traffic lights on the footpath which was to the Appellant's left demonstrate that those lights would have been obscured until he was a distance away equal to the space between two telegraph poles or a little more - perhaps the 40 metres away the Appellant referred to in his ERISP. 44 At 60 kilometres per hour, 40 metres takes about 2½ seconds to traverse and it does not seem to me that his Honour was justified in his conclusion that "the traffic lights ... were plainly visible to (the Appellant) for a considerable distance". 45 That said, I am nevertheless unable to regard the error as of more than limited significance. The Appellant's knowledge of the intersection and the slowing down to a stop of the truck to the front and left of him removed any excuse for the Appellant continuing onto the intersection as he did. 46 His Honour took the view "that the prisoner's conduct in driving through a red light into a pedestrian crossing in the circumstances constituted a piece of grossly irresponsible driving" and that the Appellant "was irresponsibly inattentive towards his obligations to other users of the road" and concluded that the case should not be regarded as one of momentary misjudgment or inattention as that expression was used by this Court in Jurisic (1998) 45 NSWLR 209. 47 I agree with this last conclusion. Whether the earlier descriptions are apposite, I think depends on what his Honour meant to convey by the expressions "grossly irresponsible" and "irrresponsibly inattentive". While it may be that the Appellant decided to ignore a red light of which he was aware or, having seen the lights, made a judgement that they would change before he entered the intersection, the circumstances seem to me at least equally consistent with a careless lack of attention. It does not seems to me that the evidence permits one to conclude, certainly conclude beyond reasonable doubt, that the Appellant's conduct was deliberate or reckless, as distinct from careless. 48 In Jurisic , (supra) at p 231 the Chief Justice expressed the guideline which this Court promulgated in the following terms: "(1) A non-custodial sentence for an offence against s52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment. (2) With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional". 49 The Chief Justice listed as aggravating factors:- (i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit. 50 In the paragraphs immediately before and after his statement of the guidelines, his Honour equated the presence of an aggravating factor to a material degree with an abandonment of responsibility. 51 In R v Pyritz (unreported, CCA, 23 November 1998) Simpson and Kirby JJ seemed to regard this two part classification as intended to be exhaustive but, with respect, I am unable to agree. There is, for example, inattention which falls between the "momentary" and that which could be described as "an abandonment of responsibility". In trying to quantify the criminality of the Appellant in this case, I would regard it as falling in that middle ground. While I agree with the learned sentencing judge that the Appellant's conduct was not momentary inattention, I do not regard the evidence as justifying the conclusion that his conduct was an abandonment of responsibility. 52 It must be acknowledged that Judge Patten so describe it. On the other hand, against the background of the terminology in Jurisic to which his Honour referred, his use of the terms "grossly irresponsible" and "irresponsibly inattentive" suggests that is how he may have thinking. Certainly, his Honour did not draw the distinction between the Appellant's conduct and that referred to in the second guideline in Jurisic which I have done. 53 Turning to other matters, his Honour said it was relevant to take into account delays in the case which occurred through no fault of the Appellant. Its history may be summarised as follows:- 2.11.96 Arrested ? Committal proceedings vacated because no Magistrate available. July 1997 Committal proceedings over 2 days. 21.3.98 Trial fixed but not reached. 13-15.7.98 Trial aborted. 20-24.7.98 Trial aborted. 15.3.99 Trial vacated on Appellant's application. 4.7.99 Trial aborted. 5-12.7.99 Trial proceeded to verdict.