SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Williams JA, with which I agree.

[2]  WILLIAMS JA:  The appellant was convicted on 2 February 2007 of the offence of dangerous operation of a motor vehicle causing death and sentenced to three years imprisonment with a parole release of 2 February 2008.  He was also disqualified from holding a driving licence for a period of four years.  He appealed against his conviction on a number of grounds, and on 16 July 2007 this Court, after hearing oral argument, ordered that the appeal be allowed, the conviction set aside, and that a verdict of acquittal be entered.  That also meant that the sentence, including the disqualification, was set aside.  On that date the Court stated that reasons for allowing the appeal would be published later.

[3] In opening the prosecution relied on the particular that the appellant was too tired to drive safely.  But the evidence was that he had had a rest, including a sleep, near Toowoomba for over seven hours, and had only been driving for about one and a half hours when the incident occurred.  In the light of that evidence the real issue for the jury, as was reflected in the summing up, was whether or not the appellant had failed to keep a proper lookout such as to constitute dangerous operation of a motor vehicle.

[4] The initial charge also included an allegation of the circumstance of aggravation that at the time of the incident the appellant was adversely affected by an intoxicating substance.  The jury found him not guilty with respect to that circumstance of aggravation, and in consequence evidence relevant to that matter can be ignored for present purposes. 

[5] The charge arose out of a collision which occurred on Ipswich Road, Darra, shortly after 2.00 am on the morning of 25 October 2003.  The appellant was driving a prime mover with two trailers attached inbound towards Brisbane.  He was travelling at approximately the speed limit, 100 kilometres per hour, and his driving, as observed by witnesses in a vehicle travelling some distance behind him, was unremarkable.  He was travelling in the left hand lane of the divided highway, with his headlights on low beam.

[6] The other vehicle involved was a 1950 Dodge truck.  According to the principal investigating police officer it was in an "unsatisfactory roadworthy condition".  The evidence of a qualified motor mechanic working in the police transport section was that "three or four rear tyres were devoid of sufficient tread" and the "vehicle was in an unsatisfactory mechanical condition due to the condition of the brakes, tyres, steering and suspension."  That witness did not test the generator on the motor vehicle.

[7] The principal investigating police officer gave evidence that the only street light in the vicinity of the collision was a single light above the overpass above where the initial point of impact occurred.  There was no street lighting on the Ipswich motorway itself.  That was confirmed by a civilian witness who was in the immediate vicinity when the collision occurred.

[8] The Dodge was also in the left hand lane travelling toward Brisbane.  There was no evidence as to the speed at which it was travelling; but the whole case was conducted on the basis that it was travelling at a much slower pace than the appellant's vehicle which was travelling just within the speed limit.  The general condition of the Dodge provides support for the inference that it was travelling well below the speed limit.

[9] Some support for that conclusion could be found in the evidence of the witness Brown.  He frequently drove along Ipswich Road in the early hours of the morning.  He said that he had "seen that truck [that is, the Dodge] on a number of occasions."  He went on:

"…around about 2, 3 o'clock in the morning when I used to come through there you used to see him just driving down there - putt, putt, putt, putt - down with a … couple of pallets of produce on and the lights were very dim … if you…weren't really looking for it - you know, you could come up on it pretty quick."

[10] It was virtually conceded by counsel for the respondent that the tail lights of the Dodge were not properly illuminated.  The right hand side tail light had been completely crushed by the impact and there was nothing of it which could be made the subject of detailed examination.  However, the investigating police officer was able to take possession of the bulb in the left hand tail assembly.  The glass was broken but the filament was intact.  Scientific examination revealed that the filament had a blackened, oxidised appearance which was indicative that it was hot at the time it was first exposed to oxygen; that means it was illuminated at the time the glass of the bulb was broken.  But the evidence does not establish whether or not the bulb was broken in the accident; theoretically it could have been broken prior to the incident in question.  The tail light fittings were attached to the truck set back somewhat under the tray.

[11] Of more significance is the evidence of the principal investigating police officer that he walked the section of road that was involved in the incident looking for debris, in particular fragments from the tail light assemblies, and found nothing.  Specifically he was looking for red or yellow coloured plastic or glass usually found in a tail light assembly and found nothing fitting that description.  He also looked to see if there was any reflector plate, or remmants of a reflector plate, on the roadway and found nothing.  In broad terms his evidence amounts to the fact that there was no evidence of any reflector plates or reflecting material on the back of the Dodge truck at the time of the incident.

[12] The appellant did not give evidence at the trial but he gave a written statement to his employer shortly after the incident, and was interrogated at length by police officers on 13 April 2005.  Relevantly in his first written statement he said:

"I was travelling in an east bound direction at approximately 2.30 am at approximately 100 klm/hr along Ipswich Rd in the inside lane of a slight incline.  After checking the road ahead was clear I checked both of my mirrors as I brought my eyes forward I glimpsed the dark green roof of a vehicle and proceeded to emergency brake as I impacted with the vehicle in front shunting that vehicle forward I swung into the outside lane".

[13] Relevantly the following questions and answers appear in the record of interview with police officers:

"What speed were you travelling on Ipswich road prior to the incident occurring? - - Approximately 99.

How do you know you were travelling at that speed? - - Because that's as fast as I travel the road.

Were there any other cars on the road at the time the incident occurred? - - As far as I am aware there was only one behind me.

…

How did you know there was another vehicle following you at that time? - - Headlights.

…

What lane were you in when the incident occurred? - - Left-hand lane.

…

Can you explain why you didn't see the other vehicle? - - Well [indistinct] don't actually know.  But there was no rear illumination.

Okay? - - Nothing closing the distance.  From when my headlights picked up an object to the impact was, would have been about a second, two seconds…

Yeah, you mentioned the rapid closing between your headlights and seeing the other vehicle.  Did at some point you see the other vehicle prior to hitting it? - - I don't know - yeah - I think yeah, I guess - all I remember was shadow.

…

How did you try to avoid the crash - what evasive action? - - After contact, I immediately applied the brakes and went into the outside lane.

How heavy did you apply the brakes? - - Jammed my foot onto them."

[14] Under cross-examination the principal investigating police officer agreed that he did not measure the point at which clear visibility of the area where the collision occurred first became available to the appellant.  That police officer, in broad terms, gave evidence that he estimated clear visibility over a distance of 150 to 200 metres up to the point of impact.

[15] It should also be noted that no evidence was given as to the range of illumination given out by the headlights of the appellant's vehicle when on low beam.  However, it would not be unreasonable to assume that the area of a roadway so illuminated in the prevailing circumstances would have been less than 150 to 200 metres.

[16] The driver of the motor vehicle travelling behind the appellant's semi-trailer was the witness Kathage.  His evidence was that he saw the semi-trailer indicate it was moving over into the right hand lane and then he "could just make out a truck - a small truck figure looked like it was exiting the highway, but then it swerved back onto the highway."  Photographs taken of the scene show that the metal barrier protecting the pylon supporting the overpass had been damaged.  It seems after the initial impact the Dodge was forced into that barrier and that it then came back onto the carriageway before mounting the embankment on the left hand side of the roadway.  That possibly explains the movements referred to by Kathage in his evidence.

[17] Under cross-examination Kathage agreed that he had not noticed anything untoward about the way in which the prime mover was proceeding down the road before the incident.  Kathage said that it just "looked like he was driving normally".  He also said that when he saw the small truck "there was no lights on it at all".  He said: "I didn't even take notice of the front lights, just the - just the back lights.  I just felt it was a bit weird at 2 o'clock in the morning there were no lights on."  He agreed that in his statement to the police he said: "It was hard to see what was happening but I when I focussed ahead the smaller truck looked dark like it had no lights on." 

[18] Beck, a witness in the vehicle being driven by Karthage, also gave some evidence supporting the fact that there were no tail lights visible on the small truck.

[19] Karthage gave evidence that his vehicle was about 500 metres behind the semi-trailer when the incident occurred.  Counsel for the respondent in this Court contended that if Karthage could see the Dodge truck from that distance the appellant must also have had an opportunity of seeing it in time to avoid the collision.  That, in his submission, was clear evidence of failure on the part of the appellant to keep a proper lookout.  In my view that proposition must be rejected.  The semi-trailer never cleared the driver's side of the truck as it swerved to the right; the damage to the prime mover was to the left of centre.  That means that the headlights of the prime mover would have been illuminating the Dodge truck from a very short distance and at the point of impact, and in consequence the headlights of the prime mover would have made the Dodge truck visible to those in the vehicle travelling behind.

[20] The evidence was that a vehicle travelling at 100 kilometres per hour would travel 28 metres in one second.  On the assumption that the Dodge should have become visible to the appellant from a distance of 150 metres that would mean that the appellant had about five seconds to react and take evasive action.  If the headlights on his vehicle on low beam did not illuminate an unlit vehicle from that distance as was probably the case, the critical time would have been less than five seconds.

[21] It was in those circumstances that the jury had to consider, applying an objective test, the driving by the appellant was dangerous.  If they were so satisfied they then had to be satisfied that there was some fault on the part of the appellant which caused that danger.  That follows from the decision of the Court of Criminal Appeal in R v Webb [1986] 2 Qd R 446, at 448.  That court expressly approved of a passage from the judgment of Megaw LJ in R v Gosney [1971] 2 QB 674 at 680 where it was said:

"In order to justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation.  'Fault' certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving.  Nor does fault necessarily involve moral blame.  Thus there is fault if an experienced or naturally poor driver, whilst straining every nerve to do the right thing, falls below the standard of a competent and careful driver.  Fault involves a failure, a falling below the care or skill of a competent and experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case.  A fault in that sense, even though it might be slight, even though it be a momentary lapse, even though normally no danger would have arisen from it, is sufficient.  The fault need not be the sole cause of the dangerous situation.  It is enough if it is, looked at sensibly, a cause.  Such a fault will often be sufficiently proved as an inference from the very facts of the situation."

[22] However, it is wrong to reason back from the fact that a collision occurred to a conclusion that there must have been fault.  The learned trial judge in his summing up directed the jury that it would be wrong for them to so reason.  But, given all of the circumstances outlined above, it is difficult to see how a jury could have been satisfied beyond reasonable doubt that the appellant's driving was dangerous if they did not infer that from the mere fact that the collision occurred.

[23] The appellant was driving along a major road at night with his headlights on low beam.  He was driving within the speed limit.  There was no system of street lighting which would illuminate objects on the roadway; the only relevant lighting was provided by the headlights of the appellant's vehicle.  The appellant was observed by another road user to be driving normally; that witness saw nothing remarkable about the way in which the appellant's vehicle was being driven as it approached the point where the collision occurred.

[24] The other vehicle, the Dodge truck, was travelling well below the speed limit on that roadway.  The evidence pointed to the fact that it had no, or at least no adequate, tail lighting.  There was no evidence that there were reflectors affixed to the rear of that vehicle.  It appeared to be unlit on the evidence of other persons on the roadway in the vicinity.

[25] Given all of that the conclusion could not be reached, applying an objective test, that the appellant was driving dangerously unless that is to be inferred from the fact that the collision occurred.  But the evidence demonstrates that, because the rear of the Dodge truck was not properly lighted, the appellant had only somewhere between three and five seconds in all probability to take evasive action and avoid a collision.  It is obvious from the damage to the prime mover that the appellant had moved significantly to his right in an endeavour to avoid a collision before impact occurred.  It is not a case of the appellant not seeing the other vehicle at all; rather it is a situation where because of the absence of adequate lighting to the rear of the Dodge truck the appellant was unable to see it in time to avoid a collision.

[26] In my view the evidence was not such as to enable a jury to be satisfied beyond reasonable doubt that the driving by the appellant was objectively dangerous, or that there was any fault on his part causing the collision.

[27] As was said by the Court when pronouncing the orders, the conviction should be regarded as unsafe and unsatisfactory in the administration of justice so that it should be set aside.

[28] JERRARD JA:  I agree with the reasons and orders of Williams JA.