FEMALE DRIVERS WHO WERE FORMER FRIENDS CHANCED UPON EACH OTHER ON A NARROW ROAD; ONE PULLED THE OTHER’S HAIR WHILE BEING DRAGGED THROUGH A MOVING CAR FOR 20 METRES, AND WAS LEFT UNCONSCIOUS

Nettlefold-Calam v Woodhouse

[2020] TASSC 35

This is an appeal of a conviction for reckless driving, assault and failing to stop and stay at the scene of a crash. Two former friends came across each other along Brightwater road. An altercation ensued culminating with one of them dragging the other through a moving car, and leaving her unconscious on the side of the road.

Facts: 

• Lillian Mae Nettlefold-Calam (“Applicant”), and complainant had been friends since school, but in about September 2017 their friendship broke down.
• At abut 12 noon on 4 May 2018, complainant was driving from Tinderbox to Hobart via Brightwater Road. Applicant was driving from Blackmans Bay to Tinderbox to take her dogs for a walk, and was also driving along Brightwater Road.
• When applicant saw complainant, she reacted by veering in front of complainant’s car which caused complainant to veer to the left of her lane and come to a stop.
• Applicant then went over to Y’s driver side window, and complainant was trying to use her phone. Applicant took it and also removed the car keys from the ignition. Complainant had a takeaway coffee in her car and threw it in the direction of the applicant.
• The complainant got out of her car and reached in through the driver's side window of the applicant's car to try and obtain her keys and phone. The applicant then moved her car forward, then reversed it, and then drove off.
• As the applicant's car was moving, the complainant's arm was caught through the window and although at first she was able to run alongside the car whilst it was moving, when the applicant increased speed, the complainant was dragged for approximately 20 metres.
• Complainant’s arm eventually became free and she hit her head and buttocks on the bitumen. She was left on the road and later on assisted by two drivers passing by.
• Applicant, on the other hand, claimed that the complainant had her by the hair and was scratching at her and effectively pulling her head out of the window, attacking her, and would not let go, so she just drove off.
• Magistrate was satisfied from evidence of the location of the complainant's vehicle when it came to rest, the presence of coffee-smelling liquid on the roadway, and the location of the coffee cup, that the complainant's account of how the incident started was reliable.
• Applicant was convicted of reckless driving, assault and failing to stop and stay at the scene of a crash.

Issue: Did the magistrate err in convicting applicant of reckless driving, assault and failing to stop and stay at the scene of a crash?

Law:

1. The classic formulation of the offence of reckless driving is found In McBride v The Queen (1967) 40 ALJR 57, Barwick CJ said at 59:

"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.”

2. Juries in assault cases are invariably instructed in this State in accordance with a form of words that has its origin in Palmer v The Queen [1971]:

"If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action."

3. Section 33 of the Traffic Act, provides as follows:

"Duty of driver to stop and assist in case of accident

(1) In this section –

crash includes –

(a) a collision between 2 or more vehicles; or

(b) any other accident or incident in which a person is or may have been killed or injured, property is or may have been damaged, or an animal in someone's charge is or may have been injured;”

Analysis:

• It was open to the learned magistrate to find, as she did, that, judged objectively according to the standard of the ordinary prudent driver, the applicant was driving her vehicle in such a manner as to create "an obvious and serious risk" of causing physical injury to some other person who might happen to be using the road. She referred to the fact that the applicant was travelling in "the middle of a narrow road; a road that she could expect would have a reasonable amount of traffic flow in the middle of the day".
• If having acted in self-defence, the applicant drove off with the complainant pulling her hair, but the complainant subsequently became momentarily caught on the car, the applicant could not be reasonably adjudged to have used excessive force unless she realised that fact. Nothing on the applicant's version to police that could justify a finding that the applicant knew that fact but continued to drive.
• The total distance driven by the applicant before the complainant dropped to the roadway was only some 20 metres. Such a distance is quickly covered, even by a vehicle moving at a moderate speed from a stationary position.
• On the applicant's account she was unaware that there had been a "crash". Her Honour, acting reasonably ought to have come to the conclusion, on the balance of probabilities, that the applicant was unaware that the complainant may have been injured because she was in flight from an attack, and also because the rear view mirror on her vehicle had been moved. Such an explanation cannot be characterised as a lack of awareness due to carelessness or recklessness.

Conclusion:

Order of conviction for reckless driving remains undisturbed. Orders of conviction on the charges of assault and failing to stop immediately and stay at the scene of a crash should be set aside.