Crane v The Queen P21/1996 [2000] HCATrans 642 (27 October 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P21 of 1996

B e t w e e n -

ALBERT VICTOR CRANE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 2000, AT 9.33 AM

Copyright in the High Court of Australia

MR A.V. CRANE appeared in person.

MR R.E. COCK, QC: If the Court pleases, I appear for the respondent. (instructed by the Director of Public Prosecutions of Western Australia)

GLEESON CJ: Yes, Mr Crane.

MR CRANE: Your Honours, please guide me if my protocol is wrong.

GLEESON CJ: You will be right.

MR CRANE: I did submit an appeal in writing and I asked that I could submit an oral account and I have it very briefly here, if I may.

GLEESON CJ: All right. We have read the written material.

MR CRANE: Yes. This is a brief summation of what happened, just to bring us up to date with what happened.

GLEESON CJ: That is fine.

MR CRANE: On 7 February 1996 I appealed a conviction in the District Court, Perth, of dangerous driving causing death. The accident happened on 21 August 1993 on the Northwest Coastal Highway approximately two kilometres north of the Murchison River bridge just past the Kalbarri turn-off. I was returning to Perth from Monkey Mia on a three-day trip with four Japanese tourists, father, mother, two daughters, plus an Australian Japanese-speaking tour guide. I was driving a seven-seater Toyota Troop Carrier tour vehicle and was struck by a 48-seater Mercedes coach owned by Feature Tours.

My vehicle was struck by the coach on the right-hand rear side as it was almost off the bitumen doing a right-hand turn off the highway to park in a clearing on the west side of the highway to allow my passengers to take some photographs of some pink everlastings. Both vehicles were travelling south returning to Perth. The coach was completely in the northbound carriageway when it struck my vehicle, having crossed a double white line after rounding a bend in the highway 260 metres back from where my vehicle was struck.

My Toyota was spun around and rolled over several times before stopping on its roof off the road on the west side. I was hanging upside down in my seat belt and had to cut myself loose with my pouch knife which I carry. Two of my passengers were killed, the father and the mother. The two daughters were injured, one very seriously, and the other and myself were also hospitalised. I was in intensive care, initially, for one week. The coach skidded on and stopped across the road, the front overhanging the eastern side of the highway. None of the passengers in the coach were hurt.

I was found guilty after a two day trial by jury and fined $10,000. My driver's licence was suspended for three years. I appealed my conviction in the Supreme Court before three judges, Mr Justice Pidgeon, Mr Justice Wallwork and Mr Justice Scott. I lost my appeal two judges to one. Justice Henry Wallwork supported my appeal very strongly attributing the cause of the accident to the coach driver, Mr Alan Smith for speeding and for doing a forbidden manoeuvre, crossing a double white line, to pass me, a manoeuvre which is strictly forbidden. I did refer and ask that a copy of the relevant Road Traffic Code which is 508 which I have here.

GLEESON CJ: Yes, we have that.

MR CRANE: You would be aware of that one, yes.

GLEESON CJ: It was provided to us.

MR CRANE: Yes. I am seeking leave to appeal before the High Court. I do so on the following points, one, the evidence as provided by the police photos of the accident site and damaged vehicle clearly show that my vehicle was in fact almost entirely off the bitumen when struck. The prosecution claimed that the point of impact could not be determined and was considered to be somewhere about the centre of the road with parts of my vehicle in both carriageways. The police plan of the accident site, although the coach was drawn out of scale and too large, does show the skid marks of the coach but only two of the three drag marks of the wheels of my Toyota.

These drag marks are clearly visible in the photograph exhibit which I had accepted as evidence in the court and which was taken by my son, Ron, the day after the accident before some of the police photographs, the coloured ones, were presented by the police and I do have the photograph here, your Honour, which - I had two of my own photographs presented to the court and I was able to get them today, plus the photograph of the front of the bus and I submit that these be presented to you so that you may look at them.

I also asked, your Honours, for a copy of the police plan, but unfortunately it seems to have been mislaid or lost or not available any more. This is a photocopy of the plan to which I referred. It was given to me by the Clerk of the Central Law Courts. He photocopied it for me and that is the plan which the police drew which show the skid marks on the road and some of the roadway. I did particularly want this plan to be here today so that you may familiarise yourself and I would ask leave if I could present this to you. It is a strict photocopy done by the courts themselves.

GLEESON CJ: Yes, thank you.

MR CRANE: The points I would make on this plan, your Honour, is that it shows only the two drag marks, those two up the top there which I will refer to later on. Thank you very much. The police plan does not show the true curvature of that section of the highway with both the bends north and south of the accident site actually an S-bend with approximately 405 metres between the bends. And, for my appeal I did go to DOLA - the Department of Land Administrations - and ask for their aerial photograph of that particular section of the road which clearly shows the bends and I did submit this in my appeal and unfortunately - - -

GLEESON CJ: Just hold it up and show it to us from there.

MR CRANE: Yes, that is it which shows it is not a straight road, your Honour, and it is quite restricted and that is the very reason why there is a double white line for almost half a mile.

GLEESON CJ: Yes, thank you.

MR CRANE: If I can refer back - I get mixed up with miles and kilometres, but - - -

GLEESON CJ: Never mind.

MR CRANE: I go back a long way, I am sorry. I presented an official aerial photograph from DOLA to the appeal judges who confirmed that it did in fact convey a completely different picture to the whole scene. I have a copy of it here which I just showed you. Mr Justice Pidgeon stated during my appeal that if the coach was out of sight, not having yet come around the bend 260 yards to my rear, it would be dangerous to convict yet he preferred to accept the evidence of an 83-year-old passenger of the coach, Mr Atkinson, who had not slept for over 30 hours, having travelled overnight up to Monkey Mia and was returning the next day and whose evidence in court was not cross-examined. A 30-hour trip in a coach is the equivalent, I suppose, to going from here to London in an aeroplane and back.

However, Mr Atkinson stated that when he first noticed my vehicle it was stationary at about a 20 degree angle away from the centre of the road, pointing outwards. I submit it could not have been possible because of a sharp bank on the west side of the road and that is why my passengers could not get out where I was parked because of the bank on the road. To have been at that angle the left front wheel would have had to have been hanging over the drop.

GLEESON CJ: What about the evidence of Mr Andrews, Robert Edward Andrews?

MR CRANE: That was the evidence of - no, that was the evidence of Mr Atkinson.

GLEESON CJ: Yes. What do you say about the evidence of Robert Edward Andrews? It is referred to on the bottom of page 89 and the top of page 90 of the application book.

MR CRANE: Well, Andrews was the younger person in the bus who gave a statement to the police and his statement said that when the bus exited the bend, came around the bend, he saw my Toyota vehicle parked on the left-hand side of the road, a white vehicle, an 8-seater or so. He said its right indicator was flashing and it appeared to be just moving off. Those are not his exact words, they would be in the transcript, but that is precisely what he said.

When cross-examined in the court by Mr Cannon, Mr Cannon referred to the evidence he had given police and he said, "Is that correct?", and he said, "Yes", what I told the police would be correct. So, Mr Andrews had seen my vehicle parked when they came around the bend 260 metres back and the right flasher and was working and he said that my vehicle appeared to be just moving off, which would actually have been so, and I will come to that later in my argument. So, that is the evidence from Mr Andrews.

As I was saying, Mr Atkinson said my vehicle was pointing at an angle away from the road. In my submission to you I included some photocopies which I did of the accident site and those photocopies clearly show that to have been in that position the front left-hand wheel of my vehicle would have been hanging over the bank. It could not possibly have been facing 20 degrees away from the road. He was obviously confused. It could have been and most probably was facing 20 degrees into the road when I had already turned to the right and was taking off, so he got a confusion between the angle at which it was pointing. It could not possibly - and the photos that I have taken, or the drawings that I have here show clearly that that could not have been as he stated.

Mr Atkinson had obviously mistaken the angle which would have been the other way after I had commenced to cross the road. Mr Justice Scott, in summary of and concluding his judgment, was obviously disoriented when he stated, and I quote:

Mr Smith had taken over driving the coach at Dongara and was heading south towards Geraldton.

This cannot be done as Dongara is already south of Geraldton, as evidenced in the photocopy of the road map I have enclosed and I have a copy of the road map here if you would like to confirm that Dongara is south of Geraldton.

GLEESON CJ: That is not in dispute.

MR CRANE: I find it hard to accept judgment from a judge who is obviously temporarily confused and I do not believe any court would allow this to stand. I believe that Mr Scott's submission there was unreliable on that particular part and we have no way of knowing how unreliable it may have been in other areas and I ask the question, "Is it beyond a reasonable doubt?". The trial judge, Mr Justice Barlow, this was during my initial trial, refused to allow my counsel, Mr Cannon, to pursue his endeavour to establish the point of impact which is crucial to my evidence and I will lead to that.

Without knowing the point of impacts I have no arguments and it was important that we established the point of impact, and yet, when Mr Cannon was cross-examining Constable Thomason, Mr Randazzo, who was representing the Crown, objected; objected to him asking those questions and I wondered why he objected. I thought it was evidence and I thought that in courts we just give evidence. However, he was not allowed to pursue that particular angle and so I was denied my natural justice by being able to establish in the court where my vehicle actually was when it was struck.

Now, I can do that very easily, it is just a matter of putting together what would appear to be similar to a jigsaw puzzle. To do this we only need the plan - that is the plan that I have put there - and the three photos, the three photos which I believe I included in the submission. Do you have some photos there, your Honour, which I included in the submission?

GLEESON CJ: Yes.

MR CRANE: One of the photos is the front of the bus. That one, very clearly. And, the reason for that is because of the bullbar on the front of the bus which is clearly identified with four uprights. We are concerned with the two on the right-hand side here, these two uprights. And, if we then look at the photograph of my Toyota which was damaged - and these photographs were taken by the police. If we look at this one which I included in my submission to you people you will see a circle around two identical imprints on my vehicle. Those are two upright imprints which were made by the right-hand side of the bullbar of the bus.

If we look up further above that one we will see two little dots. If we look at the front of the bus we will see the right-hand windscreen wipers, the base of them. Those would have made those two little black dots. If we look to the centre of the bus we see a column and if we look at the rear of this photo of my Toyota we will see that the damage done and the black paint on the rear of my vehicle, which is identical with the centre column of the front of the bus. If we look to the right above the right-hand damage mark of the bumper we will see another black mark there and that corresponds to the right-hand rear vision mirror of the bus.

So, that leaves no doubt at all. There is no error for doubt here that the bus struck my vehicle in that particular position because it left its clearly defined imprints on my vehicle. Then, if we return, your Honour, to the map, to the plan, we will see that the bus - right-hand wheels of the bus were skidding for a considerable distance. They were skidding for quite a considerable distance here and it was only the right-hand wheels of the bus which were actually gripping. They left a very clear track. So, the bus could have only been in that position with its wheels on the right-hand side there.

So, if we then put a scale of the bus on that mark, which I have done here, and we put - these are scale cut outs - these are scales. If we put the bus against my Toyota in that position we will see precisely where the Toyota was struck by the bus and I would point that out to the Crown also so that they may be fully aware of that point. Then, if we put this on those skid marks which is the only alignment in which the bus could possibly have been it could not have been anywhere else because it clearly left its mark there. If we put it on that alignment we find that both the vehicles were entirely in the right-hand, or the northbound carriageway.

Then, we come to this other photograph which I had submitted in my original trial and which they accepted as exhibit A and we will see the drag marks. There are two back there which the police have drawn but the police omitted to draw this most crucial drag mark which is the one that marked where the left-hand front wheel of my vehicle was. So, when we put that drag mark into here, as I have done on another one of these plans which I have submitted, and put it in its proper place, we find - and there is a photocopy of that enlargement -your Honours, there are the two drag marks the police put in but there is the other one which for some reason or other, unexplained, was not drawn into the plan, and that was the one which identified where the front wheel of my vehicle was.

So, when we put my little cut out on there we end up with that which I enclosed for you people to see, and we will see that my vehicle and the bus were completely in the right-hand carriageway, therefore, the point of impact can be easily established beyond any doubt. When Mr Cannon put me on the stand during the second day of my trial - - -

GUMMOW J: Now, Mr Crane, you have seen the yellow light.

MR CRANE: I am sorry, the yellow light? That means I have - - -

GLEESON CJ: You have got about one minute to go. When the red light comes on that is it.

MR CRANE: Well, I have probably said as much as I need to say at this particular stage, your Honours. I have shown that the point of impact can be clearly defined on there and although the court was led to believe that it was not established and could not be established it very clearly can be established, and I am sure the Crown would have to agree with what I have said. It if cannot be established someone has to show me why that is wrong and I know that cannot be done. So, as the time has expired, I cannot add any further to that and I thank you for listening to what I have said up until now.

GLEESON CJ: Thank you. Thank you, Mr Crane. Yes, Mr Cock.

MR COCK: Thank you, your Honours. Can I indicate that I would intend to rely upon my written submissions.

GLEESON CJ: Yes, you can take it we have read those. Thank you. Mr Cock has said that he relies on his written submissions, Mr Crane, which we have read and you have read. Is there anything further you want to put in reply to what Mr Cock put in his written submissions?

MR CRANE: Your Honours, thank you. There is very little more that I really can say. I have explained that I was denied my natural justice because I was not allowed to establish the point of impact which has now clearly been established.

I did mention in my submission that it would have taken me 10 seconds to have driven my vehicle from where it was standing on the side of the road across to where it was struck and in that 10 seconds, your Honour, the bus, at the speed which they said it was travelling, 95 to 100, well, I have taken the lesser figure of 95 to give them all the advantage I can possibly give them because I am not endeavouring to gild any lily here, I am endeavouring to tell the truth, and, yet, if we look at the scale of speeds on here we find that at 95 kilometres per hour the bus would have travelled 26.39 metres in a second and in the 10 seconds it took me to travel across the road to where I was struck, and we count the distance of 26.39 metres per second back, we find that the bus was 3.9 metres behind the bend, out of sight.

If we look at the other speeds, and the one point that I have not mentioned here was the bus averaged, coming from Money Mia to the accident site, by the evidence which was given by the drivers and others in the court, 116 kilometres per hour having travelled 320 kilometres in 2 hours and 45 minutes.

GLEESON CJ: Yes, we noted that point from your written submissions.

MR CRANE: Yes. But, I have only calculated it at the lower speed. If we look at the 116 kilometres per hour at which it was probably travelling - we do not know whether it was or it was not because the police did not do an assessment of the skid mark on the road. I have since had that done but the police did not do it, so that they did not estimate what the speed of the bus would have been. It would have been 60 metres back around the bend and completely out of sight.

My final submission, your Honours, is that I do not believe I drove dangerously by not giving away to a vehicle which was not there, which was not in sight, and it could not possibly have been in sight, as I have always maintained, and that is my argument. Thank you.

GLEESON CJ: Although there was a division of opinion in the Court of Criminal Appeal, this case turned on the application of well-settled principles to the particular facts and circumstances. The case concerned the assignment of blame for a fatal collision between two motor vehicles. This was essentially a jury question. The jury concluded that Mr Crane was to blame. As Justice Scott pointed out in his reasons for judgment, there was ample evidence on which they were entitled to come to that conclusion.

The directions the jury were given on the issue of causation were orthodox and appropriate to the circumstances of the case. There are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is refused.

AT 9.58 AM THE MATTER WAS CONCLUDED