8
MOCK TRIAL CASES 1995
P O L I C E v A L E X A N D E R
Instructions for competitors
In this case the defendant has been charged with driving in a manner dangerous to the public, an offence under Section 46 of the Road Traffic Act (South Australia). The hearing will take place before a Magistrate in the Mock Magistrates Court.
Teams will receive the following material:
a) Statement of Sandy Lucerne
b) Statement of Sergeant Lee
c) Statement of Brian/Bronwyn Alexander
d) Statement of Wanda/Warren Berg
e) Summons
f) Precedents
As this is a criminal offence the prosecution bears the onus of establishing its case against the defendant beyond reasonable doubt.
If the defendant is found guilty of the offence, the first defence counsel should be prepared to give a short statement to the court as to why the magistrate should be lenient when imposing a sentence. Information presented could relate to relevant circumstances such as road conditions or the amount of traffic on or entering the road at the time.
Section 46 of the Road Traffic Act, provides:
(1) A person must not drive a vehicle recklessly or at a speed or in a manner dangerous to the public. [Imprisonment for 2 years]
(3) Where a person is convicted under subsection (1):
(a) the court must order the person be disqualified from holding or obtaining a driver’s licence for not less than 12 months if a first offence and not less than three years for subsequent offences.
(b) the penalty cannot be reduced or mitigated in any way or substituted by another penalty unless the court is satisfied (on oath) that the offence is trifling in which case the disqualification may be not less than one month.
S U M M O N S
Act No. 5 of 1905
Section 4(1)
To BRIAN/BRONWYN ALEXANDER
of 4 Mary Street, Smithfield in
the State of South Australia
WHEREAS you have this day been charged by MATTHEW/MELISSA LEE of Gawler Police Station before the undersigned, a Justice of the Peace for the State of South Australia, for that on the 4th day of October, 2010, at about 2.30 o'clock in the afternoon, near Gawler in the said State, you did drive a motor vehicle, namely a Commodore motor car registered number UOT-431, in a manner dangerous to the public upon a public street, namely the Gawler-Willaston Road.
These are therefore to command you to be and appear on or before 28th January, 2011 at a time mutually convenient to both plaintiff and defence at the plaintiff's school in the said State, before such Magistrate for the State as may then be there, to answer to the charge contained in the said complaint, and to be further dealt with according to law.
Dated the 23rd day December, 2010, at Adelaide in the said State.
Signature: ______
Justice of the Peace
P R E C E D E N T S
1. McBride v. The Queen (1965) 115 CLR 44
Mr McBride was driving a truck on the correct side of the road at a relatively slow speed behind a motor car. As the motor car ahead of him approached a pedestrian crossing it stopped, well short of the crossing. Mr McBride swerved out from behind the motor car and struck a woman and child on the crossing. Mr McBride said that just before reaching the pedestrian crossing his attention had been attracted by a vehicle approaching from his right. He said he did not see the pedestrians until they were only about six or eight feet from him. Mr McBride was charged with driving his motor lorry in a manner which was dangerous to the public and which caused death and grievous bodily harm.
At page 49 Barwick C.J. discussed the meaning of "driving in a manner dangerous to the public:-"
"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 ...
This concept is in sharp contrast to the concept of negligence. The concept with which the section deals (driving in a manner dangerous) 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."
2. Pope v. Hall 30 SASR 78
Wells J at p.79
"It is now well settled that if driving in a manner, or (where appropriate) at a speed, which was dangerous to the public 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 or speed or the driving (as the case may be) created a wholly unreasonable and unwarranted danger to the life, or limb, or both, of other road users.
To speak of the degree of danger created by any given act or course of conduct comprehends in my opinion, two factors; the degree of risk that something untoward will happen, the damage caused will be more, rather than less, serious.
STATEMENT OF SANDY LUCERNE
Prosecution's First Witness
1. My name is Sandy Lucerne and I live at Gawler via Elizabeth. I am a contract hay bailer and Carter. On 4th October, 2010 I was working on Sam Townsend's farm 20 km from Roseworthy. We were transporting hay from Sam's farm to the Gawler showground for the upcoming Farmfest. Sam and his boys had loaded the truck when I arrived and I left Sam's property at about 2.00 pm.
2. Before I left I checked that the hay was properly loaded and tied down securely. The hay is not very heavy so it can be stacked quite high on my 5 tonne truck.
3. I was driving at a pretty steady pace, about 40 kph, because the road to Gawler is not very good. In places there are large potholes and in some areas it is badly corrugated.
4. I had been driving for about 30 minutes when I came around a right hand corner and suddenly saw a white Commodore on my side of the road, overtaking a cattle truck. The car was flying - I would say it was going at least 120 kph. I had almost no time to do anything but I hit the brakes and swerved to the left and went off the road.
5. The car swerved in front of the cattle truck and we just missed.
6. As I was trying to regain control of the vehicle it became lopsided and tipped over. My seat belt saved me and I was able to get out of the truck unhurt. I was very shaken and feeling very lucky to be alive.
7. After about five minutes the Commodore pulled up and the defendant got out of the driver's seat. He said, "Sorry mate, I didn't see you with all that dust".
8. I just shook my head. I was too shaken to get upset. But I remember looking at the truck and saying, "The truck was properly stacked with a big load of hay - it's a pity you couldn't wait until the straight to overtake".
9. The truck driver had also stopped to lend a hand. I asked him to call the police because I could see he/she had a CB radio. He/She then came back and told me, "When I told the police they said they'd been looking for this bloke for sometime. They are on the way and should be here in about 5 minutes. I'm not going to be able to stay because I'm running late now". After he/she left I was worried that the defendant might leave before the police arrived so I wrote down the registration number of the Commodore. The defendant seemed very jittery and kept apologising and talking about some dinner party.
10. When Matthew/Melissa arrived I told him/her what had happened and he/she told me how the police had been looking for someone in a white Commodore who had been speeding in the area. I know Matthew/Melissa also spoke to the defendant but I couldn't hear what they were saying.
11. I never saw any passenger in the Commodore - the only people present were the defendant and the driver of the cattle truck.
STATEMENT OF MATTHEW/MELISSA LEE
Prosecution's Second Witness
1. My name is Matthew/Melissa Lee and I live at Gawler. I am a Sergeant of Police attached to the Gawler Police Station. I have been a member of the police force for 14 years.
2. On 4th October, 2010 I was on patrol when I received a call that there had been an accident on the Gawler/Willaston Road. The operator told me that a white Commodore had forced a hay truck off the road. I had had other reports earlier in the week about a white Commodore in the district causing problems.
3. I proceeded to the incident and found a hay truck overturned about 20 km from Gawler. The only people present were Sandy Lucerne and the defendant, whom I had not seen before. Hay was strewn all over the road for about 50 metres.
4. I observed that the roadway was dry with a good covering of gravel. The speed limit for that section of road is 80 kph. Often the road is used by people as a short cut to Willaston and they often drive too fast, as if it is a bitumen road.
5. I asked Sandy Lucerne what had happened. He/She said, "I was on my way to the Farmfest when this lunatic tried to overtake a cattle truck. He/She forced me off the road and nearly killed me. You should take his licence away."
6. Then I asked the defendant for his/her account of the accident. He/She seemed to be thinking up a story and he/she said:
7. "I was on my way to Adelaide. I was told this was a good short cut. I was overtaking a cattle truck on the straight stretch of road, but he/she accelerated as I was overtaking. The dust was very bad. I couldn't see the hay truck at all. I was only doing about 80 kph. It never would have happened if the cattle truck hadn't accelerated."
8. I then examined the roadway and noticed recent tyre tracks in the dirt. I was able to see where the defendant's vehicle had commenced to overtake. It was only 200 metres away. There is just not enough room to overtake at that section of road unless the vehicle being overtaken is being driven very slowly. Just around the next corner the road straightens out and it is quite safe to overtake.
9. I asked both persons whether there were any other witnesses to the incident. They both gave me a description of the cattle truck driver but they had not taken down his registration number. They did not mention anyone else. I have not been able to locate the cattle truck driver.
10. Sandy Lucerne is a very careful person and for him/her to get upset is very unusual. I've known Sandy for about four years and she/he has often been to my home. I had no hesitation in booking the defendant for dangerous driving. He/She was just lucky I didn't catch him/her on those other occasions.
STATEMENT OF BRIAN/BRONWYN ALEXANDER
Defendant
1. My name is Brian/Bronwyn Alexander and I live at 4 Mary Street, Smithfield.
2. I am 22 years of age and work as a sales representative for Dorkins computers. I have been doing this work for two years. My duties are to try to arrange sales of Dorkins Personal Computers and to regularly visit clients to ensure that they are happy with the product.
3. My employer supplies me with a motor vehicle for this work. It is a V8 Commodore, registration number UOT-431.
4. In July 2010 I was asked to take over the Western Districts circuit. This involves visiting clients from Port Augusta to Ceduna. Usually I spend five days a week travelling from client to client and return home on weekends. On average I drive 2,000 km per week.
5. On 4th October, 2010 I was on my way home from Port Lincoln. It is about 6.5 hours drive. I had been told of a short cut of about 20 km which would reduce my journey by about half an hour. Although I didn't know the road I decided to take the short cut because I was keen to get home. I'd been invited to a dinner party at a friend's place that night.
6. When I started on the short cut it was a double lane bitumen road in a fairly uninhabited area.
There was almost no traffic around and I was making good time. However, after about 5 km it became a gravel road, just wide enough for two cars to pass.
7. Just after that I saw a hitchhiker with a backpack walking along the side of the road. I stopped and offered the hitchhiker a lift to the next town. We started chatting and he/she told me that the only vehicle he/she had seen was cattle truck which had passed about 10 minutes before I stopped.
8. Within about five minutes we had caught up with the cattle truck. It was carrying about eight animals and was going very slowly. It was also stirring up a lot of dust which made it very difficult to see. We drove behind the truck for about five minutes because the road was very windy. The hitchhiker told me there was a straight stretch of road around the next corner. As we rounded the corner I looked ahead and couldn't see anything so I put my indicator on and started to overtake. The truck was accelerating so I put my foot down to get past. As I passed the truck and moved back on to the left hand side of the road, I saw that the road had veered to the left and a hay truck was coming in the opposite direction.
9. The road was very rough in that section with a lot of potholes. The driver of the hay truck seemed to be trying to dodge the potholes and the load of hay looked very unstable.
10. After the hay truck passed I looked in my rear vision mirror and saw that the cattle truck was slowing down and flashing its lights. I couldn't see the hay truck at all, there was just a lot of dust. I thought I had better go back to find out why the cattle truck was stopping so I turned around and drove back.