Bayer v Police

Case [2021] SASC 86

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

BAYER v POLICE

[2021] SASC 86

Judgment of the Honourable Justice Peek 

9 July 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against conviction and sentence after trial by Magistrate.

The appellant was charged in Count 1 with “Causing harm (to Mr Taylor) by use of a vehicle” contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (the CLC Act) and charged in Count 2 with “Leaving an accident scene after causing harm by careless use of a vehicle” contrary to s 19AB(2) of the CLC Act. The Magistrate convicted of both offences.

1. As to Count 1, the police prosecutor at trial, particularised the driving as “recklessly” as distinct from “at a speed dangerous” or “in a manner dangerous” as is usually done. Under the South Australian legislation, if such a charge is particularised as “driving recklessly” only, it is an essential element that the defendant subjectively advert to risk and proceed regardless. Kane v Dureau [1911] VLR 293; Thompson v Copeland [1936] SASR 45; R v Coventry (1938) 59 CLR 633; Taylor v Police [1998] SASC S6540 (4 February 1998) discussed.

2.Any driving the subject of a charge against s 19A(3) of the CLC Act is to be assessed by reference to a reasonable man in the position of the appellant. Having regard to all of the circumstances, including the aggressive and distracting nature of Mr Taylor’s actions, Count 1 was not proven whether analysis of the evidence proceeded by reference to “reckless driving” or by reference to the more usual charge of “driving in a manner dangerous”. R v Duncan (1975) 11 SASR 592; McBride v The Queen (1966) 115 CLR 44; Pope v Hall (1982) 30 SASR 78; R v Kamleh (1990) A Crim R 435; R v Duryea (2008) 103 SASR 70 discussed.

3. The statutory alternative charge on Count 1 of Careless Driving contrary to s 45 of the Road Traffic Act 1961 was proven. The conviction, sentence and the order for disqualification of driver's licence imposed on Count 1 are set aside and a conviction of Careless Driving is substituted. The appellant is to enter into a bond to be of good behaviour for a period of one year, commencing from today’s date, in the amount of $500.

4. As to Count 2, the appellant asserted a defence pursuant to s 43(3)(b)(3) of the Road Traffic Act 1961 that he had genuinely believed on reasonable grounds that compliance with subsection (1)(a) would endanger his physical safety. The Magistrate found the charge proven but the cumulative effect of his Honour's directions concerning the defence were such as to suggest that he had approached the defence incorrectly and the conviction is set aside.

5.In all…

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Bayer v Police [2021] SASC 86
Case
[2021] SASC 86
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CaseChat Overview and Summary

Bayer, the appellant, sought an appeal against his conviction and sentence for causing harm to Taylor by use of a vehicle and for leaving the scene of an accident after causing harm. The appeal was heard in the Supreme Court of South Australia. Bayer argued that his conviction for causing harm was unsafe and unreliable because the prosecution had not proven that he drove recklessly, as alleged. He also argued that the Magistrate had erred in failing to consider a statutory defence available to him under the Road Traffic Act 1961.

The court considered the evidence, including dashcam footage, telephone call recordings, and witness testimony. The court found that the prosecution had not proven that Bayer drove recklessly, as he had not subjectively adverted to the risk and proceeded regardless. The court also found that the Magistrate had erred in failing to properly consider Bayer's statutory defence, which was available to him if he had genuinely believed on reasonable grounds that compliance with the requirement to stop and render assistance would endanger his physical safety.

The court set aside Bayer's conviction and sentence for causing harm and substituted a conviction for Careless Driving. The court also set aside Bayer's conviction for leaving the scene of an accident and dismissed the charge without re-trial, finding it would be unduly oppressive to re-try the charge.

The court held that reckless driving under the Criminal Law Consolidation Act 1935 requires the defendant to subjectively advert to risk and proceed regardless. The court also held that a statutory defence under the Road Traffic Act 1961 is available to a defendant who genuinely believes on reasonable grounds that compliance with the requirement to stop and render assistance would endanger their physical safety.

Orders

Orders of the court

The appellant was charged in Count 1 with “Causing harm (to Mr Taylor) by use of a vehicle” contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (the CLC Act) and charged in Count 2 with “Leaving an accident scene after causing harm by careless use of a vehicle” contrary to s 19AB(2) of the CLC Act. The Magistrate convicted of both offences.

1. As to Count 1, the police prosecutor at trial, particularised the driving as “recklessly” as distinct from “at a speed dangerous” or “in a manner dangerous” as is usually done. Under the South Australian legislation, if such a charge is particularised as “driving recklessly” only, it is an essential element that the defendant subjectively advert to risk and proceed regardless. Kane v Dureau [1911] VLR 293; Thompson v Copeland [1936] SASR 45; R v Coventry (1938) 59 CLR 633; Taylor v Police [1998] SASC S6540 (4 February 1998) discussed.

2. Any driving the subject of a charge against s 19A(3) of the CLC Act is to be assessed by reference to a reasonable man in the position of the appellant. Having regard to all of the circumstances, including the aggressive and distracting nature of Mr Taylor’s actions, Count 1 was not proven whether analysis of the evidence proceeded by reference to “reckless driving” or by reference to the more usual charge of “driving in a manner dangerous”. R v Duncan (1975) 11 SASR 592; McBride v The Queen (1966) 115 CLR 44; Pope v Hall (1982) 30 SASR 78; R v Kamleh (1990) A Crim R 435; R v Duryea (2008) 103 SASR 70 discussed.

3. The statutory alternative charge on Count 1 of Careless Driving contrary to s 45 of the Road Traffic Act 1961 was proven. The conviction, sentence and the order for disqualification of driver's licence imposed on Count 1 are set aside and a conviction of Careless Driving is substituted. The appellant is to enter into a bond to be of good behaviour for a period of one year, commencing from today’s date, in the amount of $500.

4. As to Count 2, the appellant asserted a defence pursuant to s 43(3)(b)(3) of the Road Traffic Act 1961 that he had genuinely believed on reasonable grounds that compliance with subsection (1)(a) would endanger his physical safety. The Magistrate found the charge proven but the cumulative effect of his Honour's directions concerning the defence were such as to suggest that he had approached the defence incorrectly and the conviction is set aside.

5. In all of the circumstances, it would be unduly oppressive upon the appellant to re-try Count 2 and Count 2 is dismissed without re-trial.

Background

Background to the litigation

The above matters will now be considered in further detail.A summary of the salient facts The incident the subject of the charges (the subject collision) occurred at about 11.00 am on 28 June 2019 when Bayer was driving his Commodore in a forward direction on John Rice Avenue (at its intersection with Haydown Road) in the right lane of the two lanes for travel in that forward direction. At that time, he collided with Taylor who was then on foot on the roadway, adjacent to his black Holden Colorado 4WD (the Colorado) which was stationary in the right lane of those two lanes. I make clear, as did both the prosecution and the Magistrate, that there has never been any suggestion that this impact was in any way deliberate; it was an unfortunate accident. Bayer and Taylor were strangers. Prior to the subject collision, each had been driving in his respective motor vehicle in the Elizabeth Vale area. Each was to later complain of the other’s driving at the time but none of such driving formed the basis of any charge against either person. Taylor was the main prosecution witness at trial. His evidence was unclear in a number of ways and he claimed that the subject collision had affected his memory. In short, his version was that when he was driving on Main North Road, Bayer had been travelling in the same direction as him in a different lane but had “cut him off” by entering his lane only a short distance ahead of him, thus causing him to brake; and that thereafter, Bayer was travelling too slowly having regard to the conditions and the 80 kph speed limit. With reluctance, he admitted that matters had culminated in him driving the Colorado (which was fitted with a front “nudge bar”) into the rear of the Commodore. Thereafter, he passed the Commodore and had travelled well ahead of it until he later saw it approaching from his rear as he was stationary at the intersection of John Rice Avenue and Haydown Road, in the right lane of the two lanes for his direction of travel. He then got out of the stationary Colorado to confront Bayer but, in circumstances as to which his memory was poor, he was very shortly thereafter hit by the Commodore. As to this, the Magistrate observed in his judgment:28. Mr Taylor’s evidence was not overly crucial in this matter. Whilst that may seem an unusual statement to make in a trial proceeding, this is because the events leading up to the collision and the collision itself are all captured on the video evidence of P1 and P2. That video evidence is the compelling evidence in this matter.29. I do find that Mr Taylor did seek to minimise his behaviour in that he failed to tell the Court about the contact between the two cars prior to the final incident. He also said he was not angry when he got out of his vehicle and went onto the roadway to remonstrate with Mr Bayer. I find that latter claim to be an untruth. It is patently clear from the footage of P1, that Mr Taylor is in fact quite angry. Mr Taylor points and gestures at Mr Bayer on different occasions and is quite clearly shouting something towards the Mr Bayer’s direction. Mr Taylor does not raise his fists at any point but is clearly agitated and aggressive in his demeanour. What is said is unclear but I reject that part of his evidence, it is incongruous and unbelievable in the face of the footage of P1. [Emphasis added]30. Thereafter, Mr Taylor conceded that he really had not much memory of matters once he was hit by Mr Bayer’s car. I do think his ability to recollect is understandable and that his memory after being struck, has been affected by the severity of his injuries. That lack of memory is not crucial because of the video footage of P1 and P2. Hence his credit as a witness is not crucial either.

Evidence

Evidence Before The Court

At this stage (and while he was driving), Bayer telephoned triple zero at 10.58 am in order to complain about Taylor’s driving and to ask for police assistance. He spoke with a female police telephonist (the first telephonist) for a period of three minutes and twenty seconds and it was during that very conversation that the subject collision occurred (evidenced by a muffled “thump” sound) immediately following which Bayer said, “I fuckin’ hit him”. However, the first telephonist apparently misunderstood the situation and terminated the call shortly after that at between 11.01 am and 11.02 am. Very shortly thereafter, Bayer again telephoned triple zero at 11.05 am and spoke with a male police telephonist (the second telephonist) for a further period of six minutes and forty-six seconds. These two triple zero calls are considered in more detail below.The exhibits received as evidence at trial The following exhibits were received as evidence at trial:-Exhibit P1: A DVD from a “dashcam” in the Commodore which visually recorded events occurring to the front of the car (with audio sound track) (the “dashcam recording”).-Exhibit P2: A DVD from a “dashcam” in another nearby vehicle driven by a Mr Hong (without audio sound track) was received as exhibit P2 (the “Hong dashcam recording”).-Exhibit P3: A CD recording the two triple zero recordings.-Exhibit P4: Photographs of the Commodore.-Exhibit P5: Photographs of the Colorado.-Exhibit P6: A DVD recording the police interview of Bayer (aural and visual). I now review the above recorded material in exhibits P1 to P3 inclusive.Exhibit P1: The dashcam footage from the Commodore The dashcam footage from the Commodore has a timer which, while internally accurate, was not set to the correct time of day. Accordingly, the reference to hours are here removed and the references to minutes and seconds (commencing with the first entry “2:27”) are to be used only as recording the order and duration of the events referred to rather than the actual time of day when they occurred. (For orientation purposes, the last entry below referring to the moment of the subject collision between the Commodore and the body of Taylor which is labelled “2:43” occurred at very close to 11.01 am on 28 June 2019.)[3][3] The time of the occurrence of the subject collision is fixed by reference to the fact that the statement by Bayer “I’ve fuckin’ hit him” was made three minutes into the first triple zero call (exhibit P3) which call commenced at 10:58 am on 28 June 2019 (Agreed Fact No. 1). The Commodore dashcam footage may be summarised thus: The dashcam footage from the car driven by Mr Hong, exhibit P2, is less useful than exhibit P1. It shows the Colorado stationary in the right-hand lane, with Taylor standing on the road. The Commodore, in the right-hand lane, reverses and Taylor walks towards it. The Commodore comes to a brief stop at which time Taylor turns and walks back towards the Colorado. The Commodore slowly moves forward, and Taylor turns back and walks towards it. It then accelerates towards the left-hand lane and simultaneously Taylor moves in the same direction. The Commodore straightens slightly from left to right, at which point the subject collision occurs.[4][4] This footage does confirm that the Commodore could have passed the Colorado somewhat further to the left, a matter of relevance to the alternative charge of Careless Driving contrary to RTA s 45 discussed below.Exhibit P3: The two triple zero call recordings

Decision

Reasons for decision

The error here is serious. Bayer at all times strove to communicate and co-operate with the police. He answered all questions that the police wished to put. He did not seek or obtain legal advice. There was no real delay in investigation and interview here – and if there was any delay, it was not Bayer’s fault. He was entitled to gather his thoughts and he never considered that the accident was other than serious.Analysis of paragraphs [101] to [108] of the Magistrate’s judgment At paragraphs [101] to [108], the Magistrate states:101. I reject the claim of a statutory defence or the defence of necessity being raised or proved on the balance of probabilities.102. I find so, not only on the facts, but because in Mr Bayer’s record of interview he stated at line 56 in an answer to the police;“I was on phone...I said (to the police) ... can you please stay on the phone, I’m like scared”103. That is not what Mr Bayer said in the actual recording of the telephone call at 18.02.35-18.02.37.104. Mr Bayer only said; “No, no. Stay on the phone please.”105. Mr Bayer did not mention to the SAPOL radio operator about being scared at that time nor any threat to him, let alone peril nor endangerment.106. Mr Bayer also said after the collision in that recording at 18:02:49-18:02:51; “I hit him ‘cos he ran right in front of me. He was trying to fuckin’ hit me.”107. Both of those claims are incorrect and untrue. First, Mr Taylor was not trying to hit Mr Bayer, nor his vehicle despite having plenty of opportunity to do so. Mr Taylor did not even get into close proximity of Mr Bayer’s vehicle prior to the collision.108. Mr Taylor was never in a position to physically hit Mr Bayer himself whilst Mr Bayer was in the driver’s seat of his vehicle. … The Magistrate suggests at paragraphs [101] to [104] that part of Answer 56 in the police interview is a statement by Bayer that he had said to the first telephonist “I’m like scared” when such statement does not appear in the audio recording of the first triple zero call. To address that matter, it is best to first note that Bayer’s full answer at Answer 56 (as heard on the DVD exhibit P6) is as follows: [52]And then I told the lady and that cos I was stressed out, I didn’t know what to do and all that.And then he left so I followed him and I was on the phone to her.And then we went down John Rice and then oh, the, ah, he was ah stopped to turn Right onto Haydown Road and I was on the phone to the, to lady and I said can, can you please stay on the phone, [she’s like I’ve got to go and I said can you stay on the phone][53] I’m like scared and all this.[52] Quotation marks are intentionally omitted. [53] The words in [square brackets] are to be heard on the DVD exbibit P6 but are incorrectly omitted from an aide memoire transcript used at trial. Thus, although not referred to in his Honour’s judgment, Answer 56 starts with Bayer explaining why he was talking with the first telephonist – “cos (because) he was stressed out and didn’t know what to do”. The balance of Answer 56 is long and rambling. It is likely that Bayer was speaking loosely here and simply attempting to convey that he was asking the first telephonist to stay on the line because he was scared (or stressed out) without necessarily meaning to convey that he had actually said as much to her. That, of course, would be consistent with the first line of his answer (“And then I told the lady and that cos I was stressed out” - omitted in the Magistrate’s judgment).

Ratio Decidendi

Legal Principle Established

Section 19A of the Criminal Law Consolidation Act 1935 (CLC Act) relevantly provides as follows:19A—Causing death or harm by use of vehicle or vessel… (3) A person who—(a) drives a vehicle or operates a vessel in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person; and(b) by that culpable negligence, recklessness or other conduct, causes harm to another,is guilty of an indictable offence.Maximum penalty: … (b) where a motor vehicle or motor vessel was used in the commission of the offence but serious harm was not caused to any person—(i)for a first offence that is a basic offence—imprisonment for 5 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver’s licence for 1 year or such longer period as the court orders;…(6)Where a convicted person is disqualified from holding or obtaining a driver’s licence—(a) the disqualification operates to cancel any driver’s licence held by the convicted person as at the commencement of the period of disqualification; and(b) the disqualification may not be reduced or mitigated in any way or be substituted by any other penalty or sentence.…Consideration of the concept of “reckless driving” As can be seen above, Count 1 as drawn charged the usual alternatives of driving “in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person” which appear in s 19A(3) CLC Act. However, at trial the prosecutor gave further particulars of the driving relied upon and positively restricted his case to that of “driving recklessly”. And in his final closing written submissions, the prosecutor stated:In relation to count 1, Prosecution have, hung their hat (as it were) as the conduct being “reckless”, rather than “culpably negligent” or some form of dangerous. [sic] As to the aspect of the driving said to be “reckless”, the prosecutor at trial particularised this as “continuing in a forward motion in proximity to Taylor”.[7][7] This was asserted in paragraph 4 of closing written submissions by defence counsel at trial, Ms HV Hannaford Gunn (a solicitor employed by the Legal Services Commission). This was not challenged by the prosecution at trial or on the appeal. The Magistrate stated in his judgment:45. The element of harm was conceded by agreed fact. The real issue in count one was whether the prosecution had proved Mr Bayer drove in a reckless manner.46. The prosecution pinned its sails to the mast in count one when it particularised and maintained through the course the trial, that Mr Bayer had driven recklessly and by that recklessness caused harm to Mr Taylor. In fact, this form of election was a highly unusual course for the prosecution to take. In modern times, such charges have almost always been particularised as relying upon: “driving at a speed that was dangerous”; or “driving in a manner that was dangerous”; or driving that was dangerous due to a combination of speed and manner. It is very rare to see a charge of this sort particularised at trial solely by reference to an allegation of driving “recklessly” alone (or, for that matter solely by reference to an allegation of driving “in a culpably negligent manner”).[8] This is probably because each of the terms “recklessly” and “in a culpably negligent manner” raise difficult and complex historical issues and each has been the subject of a good deal of complex exposition in the older decided cases and academic literature. Clearly, it is much simpler to charge and prove the usual charge referred to above (without averring “recklessly” or “in a culpably negligent manner”).[8] I note in passing that in closing written submissions at trial, Ms Hannaford Gunn observed: “To the knowledge of defence there is no precedent for an offence against section 19A of the CLCA having been prosecuted on the basis of reckless driving. For that reason there is limited guidance as to the meaning of recklessness in this context”. The history of the concept of “reckless driving” in South Australia