MR WAYNE LEONARD BURT In Person v COMMISSIONER OF POLICE In Person [2025] SASC 129

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE CLOVER) MCCRM-24-013802 Appellant: MR WAYNE LEONARD BURT In Person Respondent: COMMISSIONER OF POLICE In Person Counsel: MS V RAJARAMANAN - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 05/08/2025 File No/s: SCCRM-25-019199 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. BURT v POLICE [2025] SASC 129 Judgment of the Honourable Justice Gray (ex tempore) 5 August 2025 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN MANNER DANGEROUS TO PUBLIC This is an appeal which was pursued against conviction in the Magistrates Court of one count of driving in a manner dangerous to any person, contrary to s 46(1) of the Road Traffic Act 1961 (SA). The appellant drove a vehicle at Walker Flat, and is alleged to have overtaken another driver around a sweeping left-hand bend, when the road was divided by double solid white lines. This is alleged to form the conduct comprising the charge. At trial, conducted on 11 March 2025, the appellant gave evidence that he was the driver of that vehicle but maintained he was driving with care, and only trying to communicate with the driver of the vehicle he was overtaking. The learned Magistrate convicted the appellant on 15 April 2025 and delivered reasons. The appellant complains of erroneous factual findings made by the learned Magistrate and the treatment of the evidence by the learned Magistrate. Held, dismissing the appeal: 1. That the appellant drove in a manner dangerous was open to the learned Magistrate upon the available evidence (Ground 1): [22]; 2. The appellant’s complaint that the learned Magistrate found the road was ‘flat, straight and sealed, vision was clear, and the appellant knew the road and areas well’ is not entirely consistent with the factual findings of the learned Magistrate regarding road conditions (Ground 2): [23]; -- 1 of 10 -- 3. That the appellant had a compromised visibility was an open factual finding upon the available evidence, particularly with regard to the dash cam footage and the distance said to have been visible ahead of the appellant at the time of the offence (Ground 4): [24]; 4. It is a relevant consideration to assess what a reasonable person would do in the same circumstances, and the finding as to the appellant’s actions being unreasonable in the circumstances is supported by the evidence. (Ground 5 & 6): [25]; and 5. The crossing of the solid white lines is but a part of a number of factors considered by the learned Magistrate which support a charge of driving in a manner dangerous and is not the sole, or, alternatively, primary, reason upon which the learned Magistrate relied in support of proof of the charge (Ground 3): [26]. Road Traffic Act 1961 (SA) s 46; Magistrates Court Act 1991 (SA) s 42; Joint Criminal Rules 2022 (SA) r 191.1, referred to. Cater v Police [2012] SASC 120; Georgiou v The Queen [2022] VSCA 172; (2022) 301 A Crim R 229; Jaunay v Police (SA) [2023] SASC 38; Jordan v Police [2006] SASC 205; Kamleh v The Queen (1990) 51 A Crim R 435; King v The Queen [2012] HCA 4; (2012) 245 CLR 588; Ledgard v Police [2016] SASC 48; Martin v Department for Transport, Energy and Infrastructure (SA) [2010] SASC 141; (2010) 269 LSJS 403; McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44; McKenzie v McKenzie [1971] P 33; O’Halloran v Roth [2008] NSWCA 65; Pinkerton v Police [2006] SASC 341; Pope v Hall (1982) 30 SASR 78; R v Donovan [2025] SASCA 7; Taylor (an infant) v Scriven [2007] WASCA 208; (2007) 48 MVR 533; Tsalapatis v The King [2025] SASCA 7, considered. -- 2 of 10 -- BURT v POLICE [2025] SASC 129 Criminal: Magistrates Appeal 1 GRAY J (ex tempore): This matter concerns an appeal against conviction following the appellant’s conviction on information of one count of driving in a manner which was dangerous to any person, contrary to s 46(1) of the Road Traffic Act 1961 (SA) (‘the Act’). 2 The learned Magistrate found that the appellant drove in a manner dangerous by overtaking another vehicle on 24 March 2024, at approximately 7:30am, in circumstances where the appellant overtook another vehicle. The overtaking manoeuvre involved the appellant crossing solid double white lines whilst driving on a sweeping left-hand bend on a road where the visibility was partially obstructed and in circumstances where a motor vehicle could have approached from the opposite direction and caused a risk of collision or serious injury. 3 The appellant initially appealed on eight different grounds. Grounds 1, 2, 4, 5 and 6 all raise the question of whether the Court made incorrect findings of fact or otherwise fell into error to warrant interference with the conviction. These grounds challenge factual findings made by the Magistrate. The factual findings concern the road and the weight to be given to the speed of the vehicles,1 as well as two factual findings concerning whether the appellant’s visibility was compromised.2 Also challenged are factual conclusions concerning whether the appellant drove dangerously3 and what a reasonable person would do in the circumstances of the defendant and whether the appellant acted unreasonably in the circumstances.4 I will refer to these findings below as the ‘factual findings grounds’. 4 The next central matter raised by the appellant is ground 3 in the notice of appeal. This ground concerns an alleged error in the Magistrate’s finding and complains about the reliance upon the crossing of the solid two white lines as part of the reasoning process in the Magistrate finding the appellant guilty of dangerous driving. The appellant suggests that this is a primary reason for the Magistrate’s finding and submits that this fact should only support a conviction of a lesser and defendable charge. I will refer to this ground as the ‘lesser offence ground’. 5 The final two grounds, namely grounds 7 and 8, concern errors said to have occurred in the sentencing approach such that the learned Magistrate’s sentence is said to be manifestly excessive or otherwise impacted by material error. The learned Magistrate is said to have erred in excluding evidence of the appellant’s 1 Ground 2. 2 Ground 4. 3 Ground 1. 4 Grounds 5 and 6. -- 3 of 10 -- [2025] SASC 129 Gray J 2 stress and anxiety at the time5 and the learned Magistrate is said not to have given sufficient weight to the appellant’s personal circumstances when applying a 12-month license suspension, having regard to the appellant’s and the appellant’s partners health issues, location and essential needs.6 These grounds, grounds 7 and 8, were expressly abandoned at the appeal hearing.7 The appellant, who appeared unrepresented assisted by a McKenzie friend,8 indicated that he wished to appeal only against the conviction. Background and nature of the appeal 6 By information dated 27 May 2024, the appellant was charged with one count of driving in a manner dangerous, contrary to s 46(1) of the Road Traffic Act. The information alleges the offence occurred at Walker Flat in South Australia, when the defendant drove a vehicle on a road, namely Fromm Road and Mallee Road, in a manner which was dangerous to any person. The instance of dangerous driving of which Mr Burt was convicted occurred on the road when the appellant is alleged to have overtaken another driver, a Mr Bond, in the manner described above. 7 At trial, the appellant gave evidence in which he accepted he was the owner of the vehicle and was the driver at the time of the alleged offending. He accepted he drove across double white lines on the sweeping left-hand curve but maintained at all times he drove with care, and he was only trying to communicate with Mr Bond. 8 The trial was conducted on 11 March 2025, and the learned Magistrate delivered his judgment finding the appellant guilty of the offence on 15 April 2025. On the same day, after hearing submissions, the Magistrate delivered ex tempore sentencing remarks recording a conviction and imposing a $750 fine and a mandatory 12-month licence disqualification. The commencement of the licence disqualification was delayed for some three months to commence on 16 July 2025, having regard to the personal circumstances of the appellant. 9 An appeal under s 42(1) of the Magistrates Court Act 1991 (SA) is governed by Chapter 9, Part 3 of the Joint Criminal Rules 2022 (SA). It is to be conducted by way of rehearing, with the Court permitted to draw its own inferences from the evidence adduced in the proceeding at first instance.9 The Court is required to conduct a review of the evidence before the Magistrate whilst at the same time making due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given at trial.10 Whilst the Court must set aside a challenged finding of fact which is demonstrated to be wrong, the appeal is not a de novo 5 Ground 7. 6 Ground 8. 7 Appeal Transcript 3-5. 8 A lay person who provides assistance to a party in proceedings: see McKenzie v McKenzie [1971] P 33. 9 Joint Criminal Rules 2022 (SA) r 191.1(1)(a)-(b). 10 Martin v Department for Transport, Energy and Infrastructure (SA) [2010] SASC 141; (2010) 269 LSJS 403 at [38] (White J). -- 4 of 10 -- [2025] SASC 129 Gray J 3 hearing and the appellate court should not substitute its own view or otherwise interfere unless it is satisfied that the trier of fact fell into error.11 In the course of conducting such a review, the appellate court should have regard to the findings the trial Judge made, including any advantage that the learned Magistrate had in making those findings, which include the opportunity of the learned Magistrate to assess the reliability of witnesses having seen and heard their evidence in the context of the evidence as a whole.12 The offence 10 Section 46(1) of the Road Traffic Act states that a person “must not drive a vehicle recklessly or at a speed or in a manner which is dangerous to any person”. In considering whether an offence is being committed, the Act requires that the Court must have regard to the nature, condition and use of the road, the amount of traffic on the road at the time of the offence, the amount of traffic which might reasonably be expected to enter the road from other roads or places, and any other relevant matters.13 11 The meaning of driving in a manner dangerous has been considered in numerous cases, 14 including by the High Court in McBride v The Queen. 15 In McBride v The Queen, Barwick CJ stated as follows: 16 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. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public, but the need for death or injury to a person to result from impact with a vehicle so driven may make that question unlikely to arise, though the possibility of its doing so must be acknowledged. This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage. … A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section. 11 Jaunay v Police (SA) [2023] SASC 38 at [55] (Stein J). 12 Jaunay v Police (SA) [2023] SASC 38 at [55] (Stein J). 13 Road Traffic Act 1961 (SA) s 46(2). 14 See, for example, King v The Queen [2012] HCA 24; (2012) 245 CLR 588, 603 at [32]-[33] (French CJ, Crennan and Kiefel JJ); R v Donovan [2025] SASCA 7 at [65] (Livesey P, Bleby and David JJA); Pinkerton v Police [2006] SASC 341 at [23] (Gray J). For similar statements of principle with respect to “manner dangerous”, see, for example, R v Donovan [2025] SASCA 7 at [88]-[96] (Livesey P, Bleby and David JJA); Tsalapatis v The King [2025] SASCA 27 at [34]-[39] (Kourakis CJ, Lovell and Bleby JJA). 15 McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44. 16 McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44 at 49-50 (Barwick CJ). -- 5 of 10 -- [2025] SASC 129 Gray J 4 12 Further, in the decision of Pope v Hall,17 Wells J held that to establish dangerous driving it must become “so serious a departure from [ordinary highway code] that the manner or speed of 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”. 13 As these authorities indicate, the question is not whether the appellant intended to drive or appreciated that he was driving in a manner dangerous, but rather that matter is to be assessed by reference to whether a reasonable person in the situation of a driver would have appreciated that he or she was driving in a manner which was dangerous to any person.18 The learned Magistrate’s reasons 14 The learned Magistrate correctly identifies at the start of his judgment the issue in dispute, namely whether the defendant’s manner of driving was dangerous to any person. The learned Magistrate correctly directs himself as to the law and the relevant standard of proof and considers the appropriate use of the evidence. His Honour then sets out the relevant offence provisions and the matters that must be proved. His Honour’s reasons then provide a detailed consideration of the evidence including a summary of the dash cam footage19 and the oral evidence of the parties. 15 His Honour directs himself as to the relevant matters and considers relevant matters such as road, traffic and weather conditions and makes relevant factual findings. 16 His Honour considered in detail the evidence given concerning what was referred to at trial as being the ‘first manoeuvre’. It was not in dispute that the appellant overtook Mr Bond by moving across double white lines on a sweeping left-hand curve. This was described at trial as being the first manoeuvre and the manoeuvre upon which the learned Magistrate made the challenged findings, namely, the finding that the learned Magistrate was satisfied beyond reasonable doubt that the appellant had a driven in a manner which was dangerous. 17 The learned Magistrate’s reasons provide a detailed consideration of the dash cam footage. The learned Magistrate noted the appellant’s unchallenged evidence that his speed did not exceed 80 km/h during the first manoeuvre. The learned Magistrate also had to regard to Mr Bond’s evidence that due to the sweeping bend and the shrubbery/trees, he could only see whether there was oncoming traffic to a distance of about 100 metres. The learned Magistrate noted the footage of the dash cam which showed relatively dense shrubbery and a few trees along the northern side of the road about five to 10 metres from the northern edge of the eastbound carriageway at the commencement of the left-hand bend. He noted that, 17 Pope v Hall (1982) 30 SASR 78 at 79 (Wells J). 18 See further Kamleh v The Queen (1990) 51 A Crim R 435 at 436-7 (King CJ). 19 Exhibit P3. -- 6 of 10 -- [2025] SASC 129 Gray J 5 from the perspective of the dash camera, the visibility was as Mr Bond had given evidence, about 100 metres, and the learned Magistrate acknowledged that it was likely that given the position of the appellant’s vehicle on the outside of the bend, he may have had vision for a distance that was somewhat greater from that viewpoint. 18 The learned Magistrate then made a finding that he was satisfied beyond reasonable doubt that, during the first manoeuvre, the defendant could only see the westbound carriageway ahead to a distance of about 200 metres, and that the appellant could only have seen if there was a vehicle approaching to that distance. The learned Magistrate then went on to make the following findings. For the purposes of addressing the appeal it is important that those findings are set out in some detail. The learned Magistrate held:20 Having overtaken Mr Bond's vehicle, the defendant's vehicle returned to the eastbound carriageway about two seconds after coming alongside Mr Bond's vehicle. At that point, the defendant's and Mr Bond's vehicles were still travelling around the sweeping left-hand bend. While the amount of roadside shrubbery had lessened by this point, a large tree was located near the northern edge of the road. I am satisfied beyond a reasonable doubt that as the defendant's vehicle returned to the eastbound carriageway, the defendant could only have seen if there was a vehicle approaching on the westbound carriageway to a distance of about 200 metres. As the defendant's vehicle returned to the eastbound carriage, the intersection with Bond Street can be seen about 200 metres ahead in the defendant's direction of travel. Had a motor vehicle been approaching from the opposite direction to the defendant and Mr Bond on Mallee Road during the period of the first manoeuvre, I am satisfied beyond a reasonable doubt the defendant could not have seen that approaching motor vehicle until the distance between the approaching vehicle and the defendant's vehicle was about 200 metres. If the approaching motor vehicle were travelling at the speed limit of about 100 km/h and given the defendant's vehicle was travelling at about 80 km/h, the two vehicles would have reached the same point on the road in about four seconds, unless the drivers of one or both vehicles took steps to reduce their speed and avoid a collision. While it is possible a collision in such a scenario would be successfully avoided, through one or both vehicles braking heavily and through the defendant managing to return his vehicle to the eastbound carriageway, I am satisfied beyond a reasonable doubt there was a real risk of a head-on collision between the oncoming vehicle and the defendant's vehicle, and of a secondary collision with Mr Bond's vehicle. Even if the observations of time and distance I have made are put to one side, the likelihood of a head-on collision is demonstrated by the dash-cam footage. Had a motor vehicle travelling towards the defendant in the westbound carriageway arrived at the subject bend in the road at roughly the same time as the defendant, and had such an oncoming vehicle come into the defendant's line of sight while the defendant's vehicle was alongside Mr Bond's, I am satisfied beyond a reasonable doubt that a head-on collision between the oncoming vehicle and the defendant's would have been likely. It is not to the point that such a collision might have been avoided. Indeed, even if a collision were avoided, there would be a substantial risk of one of the vehicles involved leaving the road at speed due to 20 Police v Burt [2025] SAMC 46 at [42]-[47]. -- 7 of 10 -- [2025] SASC 129 Gray J 6 the driver swerving to avoid the other vehicle, which itself would create a real risk of serious injury to the occupant(s). Even if both the defendant and the driver of the oncoming vehicle quickly applied their brakes to reduce their speeds, there was a real risk both vehicles would still have been travelling at substantial speed at the point of a collision between them and/or Mr Bond's vehicle. Such a collision would likely be serious, with a substantial risk of serious injury to the occupants of the vehicles. I am satisfied beyond a reasonable doubt that in completing the first manoeuvre, the defendant's manner of driving was dangerous to multiple persons. (footnotes omitted) 19 The learned Magistrate also provided addendum reasons21 to the judgment he published on 15 April 2025, noting that on 15 April 2025, an objection had been raised by defence counsel to the regard that the learned Magistrate had to mathematical conversions set out in the passage of the judgment I have identified above. The addendum reasons referred to the decision of Ledgard v Police in which the Chief Justice held:22 The Magistrate was not precluded from making arithmetic calculations based on the evidence before him. Such calculations require no more than the application of basic arithmetic to the evidence given. 20 The learned Magistrate went on to state that there are numerous examples of appellate courts applying such basic arithmetic to convert speed expressed in kilometres per hour to metres per second without evidence of such calculations.23 Further, as the learned Magistrate had addressed in the extract of the judgment set out above, the learned Magistrate would have found the charge proved based on the dash cam footage even if the mathematical conversions that he completed were ignored. 21 The learned Magistrate’s reasons in this regard do not reveal that the learned Magistrate fell into error in the manner asserted by the appellant. Having reviewed the transcript of the trial before the learned Magistrate, and having reviewed the exhibits, including the dash cam footage, the learned Magistrate was clearly correct in his factual findings. In my view, the dash cam footage shows the first manoeuvre was unsafe and dangerous to other persons. The dash cam, when paused, showed that the vision of the upcoming intersection described as Mallee Road was obscured by vegetation. The appellant, when questioned at the appeal about this, indicated that this was not a concern as when driving past the vegetation, there was a point of visibility again. The concern with that explanation is that by then it would have been too late to avoid any potential collision. The 21 Police v Burt [2025] SAMC 46 at [62]-[68]. 22 Ledgard v Police [2016] SASC 48 at [16] (Kourakis CJ). 23 See, for example, Jordan v Police [2006] SASC 205 (Layton J) at [36]; Cater v Police [2012] SASC 120 at [18] (Gray J); Taylor (an infant) v Scriven [2007] WASCA 208; (2007) 48 MVR 533 at [20] (Wheeler JA); O'Halloran v Roth [2008] NSWCA 65 at [36] (Hodgson JA); Georgiou v The Queen [2022] VSCA 172; (2022) 301 A Crim R 229 at [35] (Priest, Kyrou and Niall JJA). -- 8 of 10 -- [2025] SASC 129 Gray J 7 learned Magistrate was clearly correct in finding the offence proved. Having regard to what is shown on the dash cam footage, there was the potential for danger such that a collision could have occurred, or there could have been a requirement for vehicles to swerve to avoid a collision, giving rise to the potential for danger brought about by the manner in which the appellant was driving. The appellant’s driving was such that there was a danger to other persons. There is a clear danger associated with the manner of driving shown on the dash cam footage. Factual findings grounds 22 In relation to ground 1, this is the complaint that the Magistrate erred in his findings that the appellant drove dangerously. For the reasons I have set out above, that conclusion was open to the learned Magistrate. The appellant has not demonstrated error, and the review of the evidence that I have conducted supports the conclusion reached by the learned Magistrate. 23 In relation to ground 2, the appellant asserts that the learned Magistrate accepted that the road was clear, it was flat, straight, and sealed, vision was clear, and the appellant knew the road and areas well. but erred in not giving enough weight to the lower speed of the vehicle being passed. Again, for the reasons I have identified above, that ground has not been made out. Whilst the learned Magistrate made relevant factual findings as to the road conditions including visibility, the manoeuvre which was the subject of the finding of the dangerous driving conviction occurred on a sweeping left-hand bend, not on a straight section of the road. Ground 2 does not accurately record the learned Magistrate’s reasoning process. Ground 2 is dismissed. 24 Ground 4 alleges that the Magistrate erred in finding that the appellant’s visibility was compromised. Again, this ground is dismissed as being without merit. The learned Magistrate gave detailed reasons as to the appellant’s visibility and also made relevant factual findings about the distance of visibility that the appellant would have had. The learned Magistrate was clearly correct in finding that the appellant’s visibility was compromised in terms of being able to see an adequate distance in front of his vehicle so as to safely avoid the possibility of a collision or near collision with any oncoming vehicle. Ground 4 is dismissed. 25 Ground 5 asserts that the learned Magistrate erred in deciding what a reasonable person would do in the same circumstance. Again, this ground is dismissed. This is a relevant consideration. As Wells J observed in Pope v Hall,24 to establish dangerous driving, it is relevant to consider whether the manner of driving is such as to create a wholly unreasonable and unwarranted danger to the life, or limb, or both of other road users. That decision and also the decision of Kamleh v The Queen25 supports that regard should be had to whether a reasonable person in the situation of the driver would have appreciated he was driving in a 24 Pope v Hall (1982) 30 SASR 78 at 79 (Wells J). 25 Kamleh v The Queen (1990) 51 A Crim R 435 at 436-7 (King CJ). -- 9 of 10 -- [2025] SASC 129 Gray J 8 manner dangerous to other persons or the public. In this case the relevant offence refers to any other persons. I dismiss ground 6 of the appeal. Lesser charge ground 26 In ground 3, the appellant asserts that the Magistrate treated the crossing of the solid white lines as the primary reasoning in finding the appellant guilty of dangerous driving where the fact on its own is said by the appellant to be a lesser and defendable charge. I would dismiss this ground. The complaint that the appellant makes of the learned Magistrate’s reasoning is not borne out when regard is had to a fair reading of the learned Magistrate’s careful decision. The learned Magistrate does not make the finding of driving in a manner dangerous based solely on the crossing of the white lines, or even primarily on the crossing of the white lines, but indeed gives very careful consideration to the relevant test including the question of the unreasonable nature of the risk. The learned Magistrate considered the wholly unreasonable and unwarranted danger to life, limb or both of other road users that the first manoeuvre involved. The crossing of the two white lines occurred on a sweeping left-hand bend where the appellant would not have been able to see an adequate distance in front of him so as to avoid a collision with oncoming traffic. I dismiss ground 3. Conclusion 27 It follows that I would dismiss the appeal against conviction. 28 I will hear the parties as to any further orders. -- 10 of 10 --