Warren Gordon Gardner v David Malcolm Pruckner Sca [1992] ACTSC 100 (7 October 1992)

SUPREME COURT OF THE ACT

WARREN GORDON GARDNER v DAVID MALCOLM PRUCKNER
S.C.A. No. 72 of 1992
Vehicles and Traffic

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Vehicles and traffic - appeal against conviction and sentence - drive in a manner dangerous - commercial licence - taxi driver - no new issue of principle.

HEARING

CANBERRA
7:10:1992 Counsel for the Appellant: Self

Counsel for the Respondent: Mr M Chilcott

Instructing solicitors: Director of Public

Prosecutions

ORDER

The appeal be dismissed.

The penalty imposed on 20 March 1992 be confirmed with effect from today.

DECISION

HIGGINS J. This is an appeal from a decision of Magistrate Burns give n on 20 March 1992.

2. The present appellant had, on that day appeared to answer a charge brought by the respondent that,

"he did drive a vehicle, to wit, motor sedan registration number
ACT TX 160 upon a public street, to wit, Bunda Street, in a manner
dangerous to persons using the said public street."
Further particulars: Time: 2200 hours. Place: Near City.

3. Those particulars were not, of course, very enlightening as to the precise acts or omissions alleged against the appellant. However, the appellant represented himself and did not seek any better particularisation of those matters.

4. After hearing evidence from a number of civilian witnesses, the informant police officer and the appellant, his Worship found as follows:-

"The defendant, Warren Gordon Gardner, is charged by way of
information that on 22 February 1991 he drove a motor vehicle, TX-160
on a public street, to wit, Bunda Street, in a manner dangerous to
persons using the said public street. The evidence in the matter
comes within a narrow compass. It is clear that Mrs Crooks and Mrs
Munro, together with Mrs Munro's daughter, were waiting at the taxi
rank in Bunda Street at about 10 pm on the evening in question. It is
clear that the defendant was driving his taxi on Bunda Street at about
that time and was hailed by Mrs Munro and Mrs Crooks.
It is common ground between those witnesses and the defendant that the
defendant stopped his vehicle, that he then proceeded to reverse back
and in doing so that the wheels on his vehicle spun or skidded.
Thereafter the two witnesses on the part of the prosecution say that
the defendant, in angling his vehicle in to the taxi rank, struck Mrs
Munro, causing her to move backwards, at which time she was taken hold
of by her sister, Mrs Crooks.
The defendant is clearly, in his evidence, not in a position to
dispute that any such striking took place. He says that he does not
believe that it took place simply because he does not recall there
being any noise or any bump consistent with such a striking.
The witnesses, together with Mrs Munro's daughter, then proceeded to
get into the taxi with two persons getting into the rear of the taxi
at least, and the other one apparently going to the front door of the
taxi. It is clear, as far as I can see, that Mrs Crooks was the
person who spoke to the defendant and said to the defendant, "you have
just struck my sister." Certainly, Leanne Munro would not have said
that because Glenis Munro is her mother, not her sister. So she would
not have been the person who spoke those words.
There then took place what might be referred to as an altercation
where the defendant told the witnesses to get out of the taxi. The
defendant says that the front door of the taxi was slammed, that he
looked ahead to see if there was a break in the traffic. He says that
there was a second slamming of the door, which he took to be the rear
door. He had seen the people in the rear moving towards getting out
of the door. In fact he had seen one of them actually alight from the
vehicle and, taking his vehicle to have been free of any impediment by
the passengers, he then moved off into traffic.
Having had the opportunity to see and hear the defendant give evidence
and the witnesses on behalf of the prosecution, I have no hesitation
in saying that the evidence which was given by Mrs Munro and Mrs
Crooks was given in a forthright fashion, in a clear fashion, and was
basically consistent. I have also no hesitation in stating that they
appeared to me to be doing their best to tell the truth and that they
did not appear to me to be embellishing the evidence at all.
Having had the opportunity to see and hear the defendant give
evidence, I was not at all impressed with his demeanour in the witness
box and it is one of those rare cases where watching and hearing a
witness give some indication as to his state of mind. I found his
explanation as to what took place at the time when he was leaving the
scene to be completely unbelievable. I do not accept that he waited
to either see or hear that the parties had left his taxi before he
left the scene.
I accept the evidence given by Mrs Munro and Mrs Crooks that the
defendant reversed his taxi at a fast rate and in reversing it struck
Mrs Munro. I accept their evidence that after having been ordered
from the taxi, that the defendant proceeded to accelerate away from
the scene of the attempted hiring whilst Mrs Munro was still only
partially out of the taxi, causing her to have to leap from the taxi.
I have got no doubt that the factual situation constituted a danger to
Mrs Munro and accordingly the defendant is guilty of the offence of
driving in a manner dangerous to members of the public. I find the
offence proved. ..."

5. Following evidence as to the appellant's prior traffic record, his Worship recorded a conviction and, pursuant to s.556B(1), sentenced the appellant to two months imprisonment. He ordered that the appellant be released forthwith upon giving security in the sum of $1,000.00 to be of good behaviour for a period of 12 months from 20 March 1992. It was a further condition that a sum of $213.00 be paid for reimbursement of expenses incurred by two witnesses. All the appellant's licences were suspended for nine months as of 20 March 1992.

6. An appeal was filed the same day. That appeal operates as a stay of the penalty imposed.

7. Two witnesses, Jeanette Angela Crooks and Glenis Margaret Munro gave oral evidence to the appellant's manner of driving following the hailing of his taxi cab on 22 February 1991. The appellant cross-examined them. Another witness, Leanne Elizabeth Munro, had made a statement which was received into evidence by consent.

8. The appellant gave evidence, consistent in broad outline with that given by the three witnesses I have referred to. He denied, however, that he had so reversed as to strike Mrs Munro. He agreed that his wheels had spun on the surface of the road as he reversed. He did not deny that he may have driven off before Mrs Munro had managed to alight completely from the cab. He claimed that he heard the doors of the cab slam and assumed, reasonably, in his opinion, that all passengers had vacated the cab.

9. It was contended by the appellant that the evidence of Mrs Crooks, Mrs Munro and, I assume, Ms Leanne Munro, should not have been accepted. This was based on discrepancies between their evidence as to the existence of roadworks, whether the taxi, in reversing, struck or only "nearly" struck Mrs Munro, whether one or other of the witnesses got into the front of the cab or whether all three were in the rear compartment.

10. Those discrepancies do exist. They seem to me peripheral to the main question. That was as to the appellant's manner of driving. If the three eyewitnesses were accepted as truthful, it was something, irrespective of surrounding detail, that they could hardly be mistaken about.

11. His Worship saw and heard two eyewitnesses and the appellant. He was favourably impressed by the evidence and demeanour of the former and unfavourably impressed by the evidence and demeanour of the latter. I see no reason to suppose that his Worship was wrong in that view. I therefore defer to his Worship's conclusion that the event occurred as described by those eyewitnesses.

12. The event they described, whether Mrs Munro was struck or "nearly" struck, is one amply justifying the ultimate conclusion to which his Worship came. It was dangerous driving. If it was necessary, I would say that Mrs Munro best knows how hard, if at all, she was struck. She describes a glancing rather than a solid blow. That could appear to be a near-miss to an observer. But for the evasive action taken, a more solid blow might have been struck. But for the swiftness with which Mrs Munro vacated the cab after it took off, she could have been thrown to the roadway and suffered serious injury.

13. Accordingly, I would uphold the decision his Worship made to find the offence proved.

14. As to penalty, it seems to me that the offence was aggravated by the circumstance that the appellant was, at the time, holding himself out as a professional driver into whose care members of the public, tourists and residents alike, could safely entrust themselves. But for the appalling rudeness of the appellant, the three passengers may have found themselves entrusted to the care of a driver who seems to have been about to emulate all the skills and the care and attention of Mr Toad in his "wild ride" as described in "Wind in the Willows".

15. The manner of driving must raise a serious doubt as to the appellant's fitness to hold a commercial licence, let alone an ordinary driver's licence.

16. Additionally, the appellant gains no entitlement to leniency from his initial lies to police concerning his involvement in the incident. His whole attitude, even after he conceded he had been driving the taxi in question at the relevant time, betrayed a complete lack of remorse. Worse, it betrayed a total lack of appreciation of the appalling quality of his driving.

17. On top of all these unfavourable indicia comes the appellant's criminal and traffic record.

18. I first have to wonder how any person with the record of the appellant obtained a commercial licence. However, his last criminal conviction was in 1981. He had over 41 convictions in that and the preceding nine years. I would infer that he has since 1981, turned his back on crime. However, his traffic record between 1974 and 1992 is not encouraging for present purposes. He has 24 convictions over that time, including three for dangerous driving, five for speeding, one for careless driving, one for negligent driving. He also has five convictions for disobeying red lights and one for failing to give way at an intersection. On 12 May 1992, when being then convicted for speeding, he was warned regarding his licence by Magistrate Dainer. That was, of course, after this matter. It shows, however, a consistent pattern of disregard for the traffic laws.

19. It was a serious offence. There were no mitigating factors put to his Worship. None were suggested to me. Indeed, I might have considered cancelling the appellant's commercial licence or licences, even if a period of disqualification was enough for his ordinary driving licence. However, on an appeal such as the present, it is not generally appropriate to increase penalties imposed unless that issue has squarely been raised and the appellant has had the chance to withdraw his appeal.

20. I dismiss the appeal both as to conviction and sentence.

21. I direct that the period of imprisonment date from today. I make the same order as made by the learned Magistrate suspending the same upon the appellant entering into a recognisance on the terms therein set out. The period of two months for payment of the sums set out will date from today.

22. I confirm the period of suspension of all licences to drive in this Territory for a period of nine months from today.