R v Perham[2016] QCA 123

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the order proposed by Mullins J and with the reasons given by her Honour.
2. MORRISON JA:  I have read the reasons of Mullins J and agree with those reasons and the order her Honour proposes to dismiss the appeal.
3. MULLINS J:  The appellant was found guilty by a jury after trial in the District Court of dangerous operation of a vehicle causing death arising from a collision that occurred on 14 October 2013 on the Flinders Highway.  The appellant was turning his truck from the westbound to the eastbound side of the highway, when the truck and the motorcycle travelling in an eastbound direction that was being ridden by Mr Stephen Smith collided.  Mr Smith died at the scene due to head and chest injuries sustained in the collision.  The principal issue for the jury was whether the appellant failed to keep a proper lookout.
4. The jury were directed on mistake of fact under s 24 of the Criminal Code (Qld), at the request of both counsel on the basis of the similarity between the circumstances in the appellant’s case and those that were the subject of R v Wilson [2009] 1 Qd R 476.  There is only one ground on which the appellant relies to appeal against the conviction which is that a miscarriage of justice occurred because the jury was asked to consider whether a mistaken belief was honest and reasonable by reference to a fact not established on the evidence.

The evidence

5. The collision occurred at about 9.45 am.  It was a fine and clear morning.  The road was a two lane highway with one lane for each direction of travel.  The speed limit was 80 kilometres per hour.  The road was straight and flat and from the collision point a driver travelling westbound had in excess of one kilometre of straight road ahead.  The appellant was driving a Kenworth Prime Mover with a Tefco tipper semi-trailer.
6. Mr Deemal was driving his HiLux twin cab vehicle behind the appellant’s truck in a westerly direction, after the truck had entered the westbound lane from the left and where traffic had been slowed to 40 kilometres per hour due to roadworks.  Mr Deemal followed the truck and about 200 metres past the end of the roadworks he observed the truck indicate to turn right.  The truck was travelling at approximately 10 kilometres per hour and did not stop before turning.  Mr Deemal then turned on his left hand indicator to pass the truck on its left hand side which he did.  Mr Deemal described what he saw when he was to the left of the truck:

“As I came up beside the prime mover itself, as it was turning right, I noticed a motorbike that was around about 20 metres in front on the right-hand lane.”

7. Mr Deemal observed that the motorcycle had its headlight on and was travelling in the middle of the right hand lane.  (Mr Deemal was the only witness who gave evidence of observing the headlight being illuminated on the motorcycle.)  The motorcycle looked like it was slowing down and Mr Deemal then saw the motorcycle drop to its right hand side and the rider leave the motorcycle.  Both the motorcycle and the rider went under the truck.  Mr Smith went under the front left hand steer tyre.  The truck was still moving forward at that stage.  Mr Deemal veered his vehicle to the left hand side of the shoulder about 20 metres ahead and got out of his vehicle to help.  The truck had stopped.  Mr Deemal saw the appellant jump out, come around to the front side of the truck to have a look, and then jump back in and reverse the truck back at least two metres.
8. Mr Poole was driving his Nissan Patrol vehicle behind Mr Deemal’s vehicle which was behind the truck.  They were coming out of the roadworks and Mr Poole estimated he was travelling at 80 kilometres per hour.  Mr Poole moved his vehicle over to near the centre of the road to see if it was safe to overtake the truck and the HiLux and saw the motorcyclist coming from the other direction.  He could not say precisely how far ahead the motorcycle was, but estimated 200 to 300 metres and decided he could not overtake.  The motorcycle was black.  He moved his vehicle back into the lane and continued driving, waiting for the motorcyclist to pass.  The truck turned off to the right across the lane and braked and the HiLux and Mr Poole’s vehicle pulled off to the left onto the shoulder.  Mr Poole saw the truck had stopped quickly.  Mr Poole stopped at the scene.  It was a very quick sequence of events.  Mr Poole eventually had a conversation with the appellant.  Mr Poole asked him what happened and the appellant told him “that he’d never seen – never – didn’t see him … it must have been a blind spot”.
9. Mr Kelly was driving a Ford Ranger at 40 kilometres per hour and was behind two vehicles and saw the semi-trailer indicating right to turn into some roadworks.  The semi-trailer was almost stationary and the traffic went onto the left shoulder to go around the semi-trailer to continue down the road.  Mr Kelly out of the corner of his eye saw the motorcycle slide into the front of the semi-trailer.  He stopped his vehicle on the left shoulder about 40 metres ahead and got out to assist.
10. Ms Seres was driving her Toyota RAV4 in a westerly direction and was about six or seven vehicles behind the semi-trailer when she was travelling at about 10 kilometres an hour near the end of the roadworks.  She saw that the truck turned right off the lane, crossed the other lane and then suddenly stopped.  Ms Seres eventually veered off to the left and stopped.  When Ms Seres spoke to the appellant, he told her “I didn’t see him coming”.
11. At the time of the collision, truck driver Mr Lobegiger was in his truck in the turnaround area for the truck drivers involved in the roadworks.  The turnaround was a section that had been made for the trucks to leave the highway to turn around and come back onto the highway safely.  Mr Lobegiger’s truck was on his way out of the turnaround area, when the appellant’s semi-trailer was about to come in.  Mr Lobegiger reversed his truck and “dog” water cart back to allow the appellant’s truck to get in.  Mr Lobegiger’s truck was moving, as the appellant’s truck was approaching the intersection.  Mr Lobegiger first saw the appellant’s truck when it was about 100 metres down the highway and it was driving slowly at walking speed.  The right hand indicator on the appellant’s truck was on.  Mr Lobegiger had finished reversing before the appellant’s truck had got to the intersection.  As the appellant’s truck was about to turn into the turnaround, Mr Lobegiger noticed an object coming from the right hand side on the highway that was about 50 metres or more away.  The appellant’s truck started to turn across the road and the impact occurred.  Mr Lobegiger observed the motorcycle to be laying down on its left hand side when it was about 20 metres to 30 metres away from the truck and then the motorcycle hit the front of the truck on the left hand front corner.  The collision happened very quickly.
12. Senior Constable Thompson attended the accident and spoke to the appellant.  She asked him what happened and the appellant responded with words to the effect of “I didn’t see him”.
13. The appellant gave evidence that he had a load of quarry material for the roadworks, had tipped the load off and was diverted by “the roadworks people” out onto the highway and was proceeding to the turning point.  The appellant slowed the truck down to about 20 kilometres an hour and put the indicator on to turn right about 200 metres from the turning bay.  He slowed the truck right down to about 10 kilometres an hour.  As he approached the turning bay, he looked down the road to see what was coming, he looked in the bay where he was going to turn around, and was watching the traffic in the mirrors “off and on” to see how they were going behind him.  He observed the water truck coming out of the turning bay with a “dog” behind it, which he explained was a truck and trailer full of water, and then observed the water truck reversing up.  The appellant looked down the road again to see what was coming and did not see anything.  The appellant saw the motorcycle when it was about 60 metres from him when he had already committed to turning the truck.  He braked.  It all happened quickly.  The appellant can remember seeing Mr Smith drop his motorcycle down just before he hit the truck.  The truck was not moving when the collision took place.  In cross-examination, the appellant accepted that as he approached the junction to do the right hand turn, he had clear vision of the road ahead of him and was already committed to turning when he saw the motorcycle 60 metres away.
14. The evidence at the trial was completed soon after 11.30 am on the second day.  Counsel then addressed the jury and the summing-up commenced at 12.53 pm on the second day of the trial.  The jury retired at 1.36 pm.  There was a redirection given at the request of counsel at 1.47 pm.  There was a jury note at 4 pm which was the subject of redirections at 4.16 pm.  A further (and the last) redirection was given at 4.31 pm.  The verdict of guilty was delivered at 5.17 pm.

The summing-up

15. The trial judge explained to the jury that the prosecution case was that the appellant failed to keep a proper lookout and turned across the eastbound lane of the Flinders Highway in front of the motorcycle that was approaching and the motorcycle collided with the truck.  The trial judge explained the offence was broken down into four elements and then explained each of the elements.  These were, first, that the appellant operated the motor vehicle, secondly, in the place identified in the indictment, thirdly, dangerously, and fourthly, that the appellant thereby caused the death of Mr Smith.  The trial judge then explained the term “operates a motor vehicle dangerously”, giving the standard benchbook direction on the operation of a motor vehicle and the meaning of “dangerously”.
16. After having given the usual direction on drawing reasonable inferences from facts the jury find proved by the evidence, the trial judge explained the relevance of his direction, in these terms:

“In this case, the Prosecution ask you to infer that the Defendant either did not look or when he looked he did not see because he didn’t look properly, it seems to be what they’re saying, and that he should have seen the motorcycle.”

17. The trial judge continued:

“So he says that he looked down the highway westwards to the east-bound lane.  He looked over to where he was turning his truck and he looked back again and it was only then at the last minute too late that he saw the motorcycle.  The Crown say that if he looked down on the first occasion he should have seen it and there was no reason why he didn’t.  Why he didn’t, one doesn’t know but he didn’t see it when it should have been seen and the inference that it seems to me that they ask to be drawn is that if he looked then he didn’t look properly or that he didn’t look at all.”

18. After the trial judge had summarised the evidence of the witnesses, including the appellant, that was relevant to whether the appellant kept a proper lookout, the trial judge identified the issue under s 24 of the Code (which the trial judge referred to as “mistake of fact”) in these terms:

“So if the defendant looked down the road, but did not see the motorcycle, under an honest and reasonable, but mistaken belief that there was no motorcycle approaching from that direction, in the east bound lane, he is not criminally responsible to any greater extent than if that in fact had been the case.  If he looked down the road, and honestly and reasonably believed that there was no vehicle approaching then he’s not criminally responsible.  That is he’s not guilty, because that honest and reasonable belief would be one of there being no vehicle there for him to see or no vehicle that he could have seen in his circumstances.

Let me go a little further.  If you conclude that the real state of things was that the motorcycle, whilst approaching with its headlight on, was approaching with its headlight on, but that the defendant honestly and reasonably believed that the road was clear, then of course he would not be criminally responsible for what has occurred.  In other words, the situation would be akin to there having been in fact no vehicle approaching.  If that’s the case then that would mean that he should be found not guilty of the charge.”

19. The trial judge gave the standard direction that a mistaken belief must have been honest and reasonable and identified that there was no issue about the appellant’s honesty, but that the real issue was whether his belief was reasonable, and to be reasonable the belief must be one held by the appellant in the particular circumstances on reasonable grounds.  The trial judge then summed-up in these terms:

“If the prosecution has failed to satisfy you that the defendant did not act under an honest and reasonable mistake of fact, you should find the defendant not guilty of the charge.  So if the prosecution proves to your satisfaction beyond reasonable doubt that the defendant did not honestly hold the relevant mistaken belief about there being no motorcycle approaching in the east bound lane, as he turned right across the east bound lane, or that the belief was not reasonable in his circumstances, then you would find the defence of mistake of fact did not apply.

So the question is this; has the prosecution proved beyond reasonable doubt that there was no reasonable basis on the evidence for the defendant’s assertion that he honestly and reasonably had a mistaken belief that when he made the right-hand turn Mr Smith’s motorcycle was not approaching in the opposite direction.  Can I repeat that for you?  Has the prosecution proved beyond reasonable doubt that there was no reasonable basis on the evidence for the defendant’s assertion that he honestly and reasonably had a mistaken belief that when he made the right-hand turn, Mr Smith’s motorcycle was not approaching in the opposite direction.

Well, you have to look at all of the evidence about that, about the motorcycle; its colour, the headlight on, what Mr Poole said about what he saw, the fact that the defendant didn’t see it, the road conditions, the weather and all of those factors.”

20. The trial judge therefore referred the jury to looking at all the evidence about “the headlight on” in conjunction with other facts relevant to whether there were reasonable grounds for the appellant’s mistaken belief that the road was clear, as he made the right hand turn across the eastbound lane.  The trial judge finished by summarising the arguments of counsel.  In referring to the prosecutor’s arguments that the appellant did not look properly, or at all, before he made the turn, the trial judge listed matters referred to in the prosecutor’s address, including that the windscreen was fine, it was a clear day, a sealed road, the road was straight, there was no obstruction to the appellant’s view and the motorcycle had its headlight on.
21. When the trial judge was summarising the evidence, he referred to Mr Poole’s evidence, then to there being evidence the motorcycle “had its headlight on”, and then immediately stated that it was seen by Mr Poole 200 or 300 metres away.  The juxtaposition of the evidence given by Mr Deemal about the headlight being on with the evidence of Mr Poole may have suggested to the jury that it was Mr Poole who had seen the headlight on which did not accord with the actual evidence, so the trial judge gave a redirection in the following terms:

“I’ve been asked to just clarify a couple of things.  I may have said to you that Mr Poole had said seeing the headlight on the motorcycle; in fact that was Mr Deemal.  So it was Mr Poole that made the observation about the two or three hundred metres away that he saw the motorcycle.  It was Mr Deemal who said that he saw the motorcycle much closer to the truck, but saw that it had its headlight on.”

22. The trial judge had also been asked by the appellant’s counsel to give another direction to the jury based on Wilson at [19]-[20].  The further direction on this topic was given in the following terms:

“And the other matter that is this, that I spoke to you about mistake of fact.  I’ve been asked, quite properly, just to add something to that.  So it was that part where I said the question is, so I’ll just say the question again and then add to what I need to add.  So the question is:

Has the prosecution proved this is mistake of fact?  Has the prosecution proved beyond reasonable doubt that there was no reasonable basis on the evidence for the defendant’s assertion that he honestly and reasonably had a mistaken belief that when he made the right-hand turn, Mr Smith’s motorcycle was not approaching in the opposite direction?

The emphasis is on him; did he have an honest and reasonable belief.  So the question is this:

Have the prosecution proved beyond reasonable doubt that … that an accused person may hold an honest and reasonable, but mistaken belief as to a state of things, even if another ordinary reasonable person may not have made that mistake?

Okay.  So I’ll just repeat that for you:

An accused person may hold an honest and reasonable, but mistaken belief as to a state of things, even though another ordinary reasonable person may not have made that mistake.”

23. The jury’s question in the jury note was “Is it classed as dangerous driving if he didn’t see the motorbike?”.
24. In giving the redirection, the trial judge referred to the evidence of Mr Poole and Mr Deemal and the appellant, as the principal evidence about the driving just before and at the time the turn was taken.  Although the trial judge correctly recited the respective evidence of Mr Poole and Mr Deemal, he mistakenly referred to Mr Deemal as being behind or further back than Mr Poole.  The trial judge repeated the direction on what is meant by “operates a vehicle dangerously”, explaining that “keeping a lookout” means being alert to your surroundings and things that might or may happen.  The trial judge repeated the direction on what the law defines as being dangerous in the context of the subject charge and gave the standard direction on applying that to driving.  The trial judge reminded the jury that they also had to consider mistake of fact and read again the substance of s 24 of the Code and that part of the standard direction that includes “A mere mistake is not enough.  The mistaken belief must have been both honest and reasonable; honest belief is one which is generally [sic] held by the defendant.”
25. The trial judge pointed out to the jury there was no evidence that the defendant’s belief there was nothing down the road when he turned, or when he was about to turn, was not honestly held by him and that the key issue was whether his belief was reasonable.  The trial judge then directed the jury:

“So the question is, if I phrase it in this way firstly, ‘Has the prosecution proved beyond reasonable doubt that there was no reasonable basis on the evidence for the defendant’s assertion that he honestly and reasonably had a mistaken belief that when he made the right-hand turn Mr Smith’s motorcycle was not approaching in the opposite direction?’

…

Let me just express that in another way and then make a statement which directs your attention to what his belief was not what someone else might have thought.  So can I put the prosecution’s onus in another way:  The question is, ‘Whether the prosecution has proved beyond reasonable doubt that there was no reasonable grounds for the defendant’s honest, but mistaken, belief that it was safe to make the turn across the east bound part of the road into the turnaround area?’

The defendant may hold an honest and reasonable, but mistaken belief as to the state of things, even though another ordinary reasonable person may not have made that mistake.  The focus is on him, in the circumstances demonstrated in the evidence that he was in.  It doesn’t matter what somebody else might have thought, or whether they might have made a mistake or not, sitting in that seat of the – the driver’s seat of the truck instead of the defendant, okay.  So you must focus on him and not go to whether some other person might not have made that mistake; that’s irrelevant.”

26. After that redirection was given, counsel raised with the trial judge that in reciting the evidence of Mr Deemal and Mr Poole, he had made an error in referring to Mr Deemal being behind Mr Poole.  The last redirection given by the trial judge before the verdict was in these terms:

“When I spoke about … Mr Deemal’s evidence, I said that he was in the line of traffic, and I thought he was behind Mr Poole.  In fact he was in front of Mr Poole.  He was behind the truck, Mr Deemal.  And when he turned – when he went to the left to go past the truck he had gone sort of off the road a little partly because the truck had moved over to turn right.  As he was passing the prime mover he saw ahead of him a motorcycle about 20 metres ahead and the motorcycle had its headlight on.  So I just wanted to correct where he was in the line of traffic; he was between the truck and Mr Poole.”

The appellant’s submissions

27. Because the direction under s 24 of the Code was given by the trial judge, the issue on the appeal is whether there was an error made by the trial judge in the direction that was given, rather than whether such a direction should have been given.
28. The appellant argues that the jury were invited to consider whether the appellant could have been reasonably mistaken about the absence of an oncoming motorcycle on the assumption, not open on the evidence, that the oncoming vehicle was “approaching with its headlight on”.  This is on the basis that there was no evidence that the motorcycle was travelling the straight and flat one kilometre of highway with its headlight on, as the relevant evidence about any illumination of the motorcycle headlight was confined to Mr Deemal’s evidence that the headlight was on when he saw motorcycle, when it was 20 metres from the truck.  It could only be speculation that the headlight may have been illuminated at some distance before Mr Deemal made his observation about the motorcycle.
29. The submission is made therefore that the trial judge framed the issue by reference to a fact (that the motorcycle was approaching with its headlight on) which it was not open to the jury to infer on the evidence and that rendered it much more likely that the jury would conclude that the appellant’s mistake was unreasonable, if they acted on the issue as formulated by the trial judge, because the longer the period of time available to observe an illuminated object, the less reasonable any mistake about its presence.  The appellant submits that the trial judge’s framing the issue on the basis of the fact which was not open on the evidence meant that the direction that was given on mistake of fact based on the headlight being on should be characterised as an error of law or, at the least, as a mixed error of law and fact.
30. Although the appellant’s counsel conceded that the redirection last given by the trial judge before the verdict referred correctly to Mr Deemal’s evidence that, as he was passing the appellant’s truck, he saw about 20 metres ahead of him a motorcycle with its headlight on, it was submitted that was not sufficient to remove the impression conveyed in the summing-up as originally delivered that the motorcycle was travelling towards the appellant’s truck with its headlight illuminated and the trial judge did not restate the mistake of fact issue by reference to accurate evidence about the illumination of the motorcycle’s headlight.

The respondent’s submissions

31. In the context of the principal issue for the jury being whether the appellant failed to keep a proper lookout, the real question for the jury in respect of s 24 of the Code was whether the appellant’s belief that there were no oncoming vehicles was not reasonable.  The respondent submits that did not depend upon whether the headlight on the motorcycle was illuminated, given the road conditions, it was a sunny day, and the collision occurred at 9.45 am.  As the redirection was given reminding the jury of the evidence of Mr Deemal that the motorcycle was seen by him with its headlight on 20 metres ahead of the truck, there was ultimately no issue about the trial judge misstating to the jury the evidence concerning when the headlight was seen to be illuminated on the motorcycle and by whom.  The trial judge’s ultimate formulation of the mistake of fact question in answering the jury’s question was unimpeachable.

Was there a misdirection?

32. The appellant’s arguments on this appeal focused on all the evidence and directions that were affected by the evidence concerning the illumination of the headlight on the motorcycle.  That overemphasised the prominence of that issue in the trial itself.  It was a short trial and it is apparent from the jury’s very pointed question that the jury was across the principal factual issue they had to decide on whether the appellant kept a proper lookout when he turned his truck.  The principal factual issue also was relevant to the mistake of fact question, as whether the appellant’s belief that there was no oncoming vehicle was based on reasonable grounds depended in the circumstances of this collision on whether he kept a proper lookout as he turned the truck.  The limited evidence from Mr Deemal about when he observed the motorcycle’s headlight on was only one aspect of the circumstances of this collision.
33. As the trial judge embarked on directing the jury on mistake of fact, the directions had to reflect the application of mistake of fact to the evidence in the trial.  Ultimately after the further direction given by the trial judge in response to the jury question, the jury were directed on the correct question they had to answer on the mistake of fact issue.  The earlier misstatement of the issue by reference to an incorrect statement as to the state of the evidence on the illumination of the motorcycle’s headlight was addressed by the redirections, leaving the jury with no misdirection on the mistake of fact issue.  It was neither necessary nor appropriate on the evidence for the trial judge to reformulate the mistake of fact question by reference to Mr Deemal’s evidence as to when he saw the motorcycle with its headlight on.
34. There was only a slight distinction between the principal issue of fact that the jury had to decide on the prosecution case and the issue raised by the application of s 24 of the Code on whether the appellant’s mistaken belief that there was no oncoming traffic when he proceeded to turn across the eastbound lane (which in turn depended on whether he had looked properly before proceeding) was reasonable.  The trial judge directed on s 24 of the Code in response to the request that he do so made by both counsel at the trial and there was no error in his so doing.  Equally, because the factual issue that was relevant to excluding the defence under s 24 of the Code was in substance in this case not open to any different answer than the principal factual issue, there would arguably have been no error if the trial judge had not directed on s 24 of the Code.  The comments made by Williams JA in R v Plath [2003] QCA 567 at [7] are apposite in this regard.  See also Wilson at [14].

Order

35. It follows that the order which should be made is:

Appeal against conviction dismissed.