Bullock v The Queen - [2019] SASCFC 131

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
BULLOCK v THE QUEEN
[2019] SASCFC 131
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Doyle)
29 October 2019
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PROCEDURE - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EXPRESSION OF JUDGE'S OWN OPINION - GENERALLY
Appeal against conviction for one count of aggravated driving without due care contrary to s 45(1) of the Road Traffic Act 1961 (SA) and one count of leaving the scene of an accident after causing death by driving without due care contrary to s 19AB(1) of the Criminal Law Consolidation Act 1935 (SA).
The charges arose out of a collision which occurred in a suburban street, when a motor vehicle being driven by the appellant struck and killed a two year old child who was on the road out the front of the child's home. The appellant drove on from the scene of the collision to his own home approximately 100 metres away, and there caused his wife to telephone the police to report the collision.
The appellant contends that the trial judge erred:
1. in directing the jury that the obligation to “stop the vehicle” under s 43(1) of the Road Traffic Act 1961 (SA) required more than simply bringing the speed of the vehicle to zero;
2.       when directing the jury in relation to driving without due care, by drawing a comparison with dangerous driving; and
3.       by suggesting to the jury that the appellant’s conduct failed to avoid a “situation where a person is continually run over like a dead cat”.
Held, per Doyle J (Stanley and Nicholson JJ agreeing), dismissing the appeal:
1. The obligation to stop under s 43(1)(a)(i) of the Road Traffic Act 1961 (SA) requires that the driver stop for a sufficient period of time to enable the driver to make an assessment of the situation and hence what might be required by way of assistance, and to enable the driver to be in a position to give such assistance as he or she is able to give. Accordingly, the trial judge’s explanation of the obligation to stop was accurate and appropriate.
2.       The comparison with dangerous driving was not inaccurate, and could not be regarded as an error of law. The comparison with dangerous driving may have resulted in a miscarriage of justice if left at that, however a miscarriage of justice was avoided in this case by the trial judge’s subsequent directions.
3.       The impugned remarks of the trial judge were unhelpful and unfortunate but would not have been understood as a comment upon the appellant’s conduct, and were not productive of a miscarriage of justice.
Road Traffic Act 1961 (SA) s 43(1), s 43(3), s 45(1), s 45(3); Road Traffic Act 1934 (SA) s 52(1); Criminal Law Consolidation Act 1935 (SA) s 19AB(1); Evidence Act 1929 1929 (SA) s 13BA, referred to.
Gilbert v The Queen (2000) 201 CLR 414; Gillard v The Queen (2003) 219 CLR 1; Mraz v The Queen (1955) 93 CLR 493; James v The Queen (2014) 253 CLR 475; R v Suppiah [2018] SASCFC 11; R v Jaeschke (2007) 99 SASR 300; The Queen v Mayne (1975) 11 SASR 583; Hill v Police [2009] SASC 3; Noblet v Condon [1935] SASR 329; Mallan v Berry [1964] SASR 8; Critchley v Downs [1964] SASR 350; Norling v Woolacott [1964] SASR 377; Lee v Knapp [1966] 3 All ER 961; McKell v The Queen (2019) 93 ALJR 309; R v Carberry [2014] SASCFC 78, considered.

BULLOCK v THE QUEEN
[2019] SASCFC 131
Court of Criminal Appeal: Stanley, Nicholson and Doyle JJ

STANLEY J: I would dismiss the appeal. I agree with the reasons of Doyle J.
NICHOLSON J: I agree that the appeal should be disposed of as proposed by Doyle J and with his Honour’s reasons. There is nothing I could usefully add.
DOYLE J: The appellant was found guilty by majority verdicts of a jury of aggravated driving without due care, and leaving the scene of an accident after causing death by driving without due care.
The charges arose out of a collision which occurred in a suburban street, when a motor vehicle being driven by the appellant struck and killed a two year old child who was on the road in front of the child’s home. The appellant drove on from the scene of the collision to his own home approximately 100 metres away, and there caused his wife to telephone the police to report the collision.
This appeal against conviction relies upon three grounds, namely that the trial judge erred:
1. in directing the jury that the obligation to “stop the vehicle” under s 43(1) of the Road Traffic Act 1961 (SA) required more than simply bringing the speed of the vehicle to zero;
2. when directing the jury in relation to driving without due care, by drawing a comparison with dangerous driving; and
3. by suggesting to the jury that the appellant’s conduct failed to avoid a “situation where a person is continually run over like a dead cat”.
Before addressing these grounds, it is convenient to commence with some matters of background.
Background
The appellant was charged with three offences arising out of the events described above:
1. Aggravated driving without due care contrary to s 45(1) of the Road Traffic Act (count 1), the offence being aggravated by reason that it caused the death of a person (s 45(3)(a)).
2. Leaving the scene of an accident after causing death contrary to s 19AB(1) of the Criminal Law Consolidation Act 1935 (SA) (count 2).
3. In the alternative to count 2, failing to stop, assist and present to police after an accident contrary to s 43(1) of the Road Traffic Act.
As to the circumstances of the collision, the appellant was the driver of a blue Kia Cerato motor vehicle which collided with the child (ZC) at about 8.00 pm on Sunday, 12 February 2017 on Branksome Terrace in Dover Gardens. ZC died as a result of injuries sustained in the collision. He was aged two years and 10 months.
The collision occurred in the vicinity of ZC’s home on Branksome Terrace, at a time when he was playing with his older sisters KC (aged five years) and MC (aged seven years). The appellant did not get out of his vehicle following the collision, instead driving on to his premises on an intersecting street, approximately six houses or 100 metres away from where the collision occurred. Having been alerted to the incident by the sound of tyres screeching and an older child calling out, ZC’s mother (CY) ran outside and found her son lying on the road. She picked him up and carried to her driveway. A neighbour administered CPR to ZC prior to the arrival of emergency services.
Following the appellant’s arrival home, his wife telephoned triple zero and reported the collision at 8.08 pm. The first police arrived at the scene at about 8.17 pm.
The only witnesses at trial who purported to have seen the collision were ZC’s sisters KC and MC. Their evidence was admitted at trial pursuant to the provisions of s 13BA of the Evidence Act 1929 (SA).
KC, aged five years and four months at the time of her interview on 2 March 2017, said that a blue car “ran right over” ZC and kept going. She said that before ZC was hit by the car they were outside playing basketball, and that ZC was playing on the road. She said that there was one person and a dog in the car.
MC, aged seven years and nine months at the time of her interview on 2 March 2017, said that KZ and ZC were out the front of their house. She went out the front of her house and saw ZC run across the road from the other side of the road. There was a car coming from the corner. She said she was near KC in the vicinity of a tree, and that KC said “stop”. She said that ZC got run over because he was running across the road to near where she and KC were. According to MC, the car did not stop.
There was no application to further examine in chief or cross examine either KC or MC.
Kyle Chapman and Daniel Bown were walking along Branksome Terrace at the time of the collision. They had seen children playing out the front of a house where the collision occurred. Neither saw the collision, however they both gave evidence that they heard the collision and then saw a car drive past them at speed. Mr Chapman said that there was maybe a couple of seconds between hearing the collision and seeing the car drive past. Neighbours gave evidence that they heard a bang or thud followed immediately by the sound of a car accelerating.
There were no other adults on Branksome Terrace at the time the vehicle drove off. CY and another woman emerged from the deceased’s home after a little girl went inside screaming and crying and calling for her mother.
Mr Chapman telephoned triple zero after the children went into the house and not long after the sound of the collision. He estimated that he made the call about 40 seconds after realising what had happened.
Closed circuit television footage from the appellant’s premises captured his vehicle entering his street following the collision and parking in his driveway, and his entry into his house.
The evidence revealed that Branksome Terrace is a residential street with houses on either side. It is a bitumen road, with raised gutters and normal footpaths. The road was in good condition and slightly less than 8 metres wide. It had a default speed limit of 50 kph. There was also some evidence from neighbours to the effect that it was common for children to be playing out the front of the deceased’s home in the area where the collision occurred. At the time of the collision, being slightly after 8.00 pm, it was still light.
The prosecution led evidence as to the police examination of the collision scene and the appellant’s vehicle. There was also expert evidence from two collision reconstructionists, Brevet Sergeant Halleday and Graham England. Their evidence was relevant to matters including the likely speed of the appellant’s vehicle, reaction times, stopping distances and the mechanics of the collision. While obviously relevant to the jury’s consideration of various issues, it is not necessary to recite the detail of that evidence for the purposes of this appeal. It is sufficient to note that the evidence suggested that the collision occurred in approximately the centre of the road. It suggested that ZC’s body and head were struck by the front of the appellant’s vehicle, resulting in him being pushed over and the vehicle then driving over him towards the passenger side.
The appellant gave evidence. He said that the collision occurred after he had driven to the supermarket to buy cigarettes. He acknowledged that his 18 month old dog was unrestrained in the backseat of the vehicle at the time.
The appellant said that he turned into Branksome Terrace and then travelled along it at a speed of about 35 kph. He drove at that speed “because there’s usually somebody out playing”, and the street is narrower than his own. As he approached a tree on his left, a little girl ran out from behind the tree onto the road about 2 metres from him. He swerved to the right to miss her and heard a noise at the front of the car. Something then went under his rear wheels. Immediately before the collision he had been looking straight ahead and there were no obstructions to his view. The appellant said that he did not know how the deceased child came to be in the middle of the road.
The appellant’s evidence was that he realised he had run over a child and thought the child was dead. He stopped his vehicle, saw the child lying on the road and panicked. He offered no assistance at the scene, but rather went home to telephone the police “or someone to get him help”.
The appellant said that his reason for failing to remain at the location of the collision was that he was scared of what would happen; that he was scared of the child’s family. He claimed to have heard screaming before he drove away, and to have believed he was in danger on account of a potential connection in his mind between the child’s family and a “home invasion” he had experienced some six or so months earlier.
The appellant did not recall how long after he returned home the call to triple zero was made, or what he said to his wife before the call was made.
The appellant’s wife, Donna Bullock, gave evidence confirming that she made a phone call to triple zero. In the recording of the call, the appellant was heard to say in the background that he had just run over a child; that he thought the child was dead; that he did not stop as it was not safe; and in response to whether there was a parent or someone at the scene of the accident, he said “yeah they’re all yelling and screaming.”
In relation to count 1, the prosecution case was that in light of the evidence as a whole, the appellant’s failure to see ZC on the road in front of him until it was too late, or indeed at all, involved a departure from the requisite standard of care and hence driving without due care; and that this want of care caused the collision and death of ZC.
The defence case was that the prosecution had not proved beyond reasonable doubt that he drove without due care, or indeed that any want of care on his part was causative of the collision and death. The defence case emphasised that even when appropriate care is taken, some collisions nevertheless occur and are essentially unavoidable. It was emphasised that the appellant had been distracted by a child moving from behind a tree and that this had led to him not seeing ZC running out onto the road. The defence was that the causes of the collision were, amongst other things, this distraction and ZC’s conduct in running out onto the road, and not any want of care on the appellant’s part.
In relation to count 2, I shall refer in more detail below to how the forensic contest unfolded. However, in addition to the issues in relation to a want of due care and causation, there were also issues as to whether the appellant had failed to satisfy his statutory obligation to stop and give all possible assistance, and whether, even if he did fail in this respect, he nevertheless had a defence on the basis that he genuinely believed on reasonable grounds that compliance with this obligation would endanger his physical safety.
The jury returned majority verdicts of guilty in relation to counts 1 and 2, and hence did not return a verdict on the alternative count 3.
In now turning to address the complaints made on appeal, it is convenient to commence by addressing the ground that relates to the trial judge’s directions in relation to driving without due care (ground 2).
Driving without due care
It was an element of both the count 1 and count 2 offences that the appellant drove without due care. The appellant contends that in directing the jury as to this element, the trial judge erred in drawing a comparison with the more serious offence of dangerous driving. While not suggesting any inaccuracy in the trial judge’s directions, the appellant contends that the use of this comparator encouraged the jury to treat driving without due care as something of a compromise conclusion.
The trial judge initially addressed the issue of driving without due care in the context of the second element of count 1. His Honour directed the jury as follows (with paragraph numbering inserted by me for ease of reference):
[1]     The second thing is that it must be proved that the accused was driving the vehicle without due care or attention or without reasonable consideration for other persons using the road. The accused contests this element so I will break it down into a few parts and explain it in more detail.
[2]     I begin by pointing out what is unfortunately only too obvious to everyone in these days; namely, that the occupation of driving a motor vehicle upon the public highway is one that calls for a very high degree of care and concentration, more particularly so when the vehicle is driven at any speed or where there are vulnerable members of the public in the vicinity. This is so because a vehicle is a big and heavy object which can easily do damage to a frail human being.
[3]     It must be obvious that unless the driver of the vehicle is able to give his undivided attention to his driving and to exercise a considerable degree of care and skill he is a menace to the public safety. A car is a dangerous object. It is probably more dangerous than a bullet fired down the road because a car is much bigger and heavier and can do more damage than a bullet fired down the road. It is our duty when we are doing an act fraught with danger to other people to exercise a degree of care and circumspection commensurate with the danger of the situation we are creating.
[4]     Realising that, the statute law provides an ascending scale of offences of seriousness of driving. The least of the offences of bad driving is driving without due care or attention and that covers any material departure from the high standard of care which is due by anybody who drives a motor vehicle.
[5]     Some people impose on other users of the road a risk which is by no means a fair or necessary risk of the road. They drive in a manner which imposes upon other users of the road a risk which any reasonable person in the situation of the driver ought to recognise as a real danger to the public. This is driving in a manner dangerous to the public. It is the more serious of the two sorts of bad driving behaviour, driving without due care and driving in a manner dangerous. It refers to the sort of risk which is in no sense an ordinary or necessary risk of the road and to a manner of driving which is treated as a very serious crime as opposed to driving without due care, which is a less serious crime because it deals with any driving that falls short of the standard of good driving.
[6]     The sort of driving we are talking about in this case is driving so as to be unable to avoid hitting a small child on a fairly straight road. It is said by the prosecution to be driving without due care. They are not saying that it is the more serious type of bad driving of driving in a manner dangerous, they are saying it is the less serious, driving without due care.
[7]     The question for you is whether it is proved beyond reasonable doubt that the manner of driving of the accused is at least driving without due care. If you were to conclude that the driving was worse than that, that it was driving in a manner dangerous, it would still be classified as driving without due care and you could still return a verdict of guilty because the more serious obviously includes the less serious.
[8]     So the obligation to drive with due care is the duty to exercise the standard of care which one would expect of a reasonably prudent driver in like or similar circumstances. The reasonably prudent driver is expected to drive with a defensive outlook; that is, an outlook that not only sees immediate or immediately developing danger but looks well ahead and searches for potential danger. In deciding whether this element has been proved you must have regard to the evidence in this trial and decide objectively whether the actions of the accused fell below the standard that is expected of a reasonably prudent driver so as to be able to be classified as driving without due care.
[9]     I say you decide it objectively because to be guilty a person does not have to intend to drive without due care, a person could think he is driving really well but he could still be driving without due care. So that is the second element that has to be proved beyond reasonable doubt.

After addressing the third element (the circumstance of aggravation) of count 1, his Honour then reiterated:
[10] So those three things have to be proved beyond reasonable doubt before you can return a verdict of guilty. I just summarise those: it must be proved that he was driving; it must be proved that his driving was driving without due care, and I have explained there is a higher degree of bad driving and that is driving in a manner dangerous and if he is guilty of driving in a manner dangerous he would be guilty of driving without due care, the charge in this case is the less serious one, driving without due care; and the third thing that must be proved is that that driving, that driving without due care, was a substantial cause of the death of the deceased.
In the context of count 2, his Honour directed the jury that the second element, driving without due care, was the same as for count 1.
During an overnight break in the summing up, and in the absence of the jury, defence counsel complained that the trial judge’s reference to an ascending scale of driving offences would divert the jury’s attention from applying the law as put to them in relation to driving without due care; that the trial judge’s directions essentially conveyed to the jury “here’s a compromise, find him guilty”. The trial judge noted that it had been the prosecutor who had first mentioned the comparison with dangerous driving in her opening, but said that in light of defence counsel’s complaint, he would instruct the jury to focus on driving without due care.
Before the jury returned the following morning, defence counsel made an application for a mistrial on various bases, including on account of his Honour’s reference to dangerous driving. The trial judge refused the application.
Upon the jury’s return to the court room, the trial judge gave some directions by way of correction and clarification. They included the following in relation to his Honour’s reference to dangerous driving:
[11]    Also yesterday I introduced the concept of dangerous driving. Now, on reflection, I am not sure that that might have been confusing you and better not mentioned. The type of driving we are talking about - I only brought it in to try and put in context the degree of bad driving that we talk about here in the law in South Australia, dangerous driving and driving without due care. I do not know whether it has confused you or not but remember that here we are only talking about driving without due care being one of the elements of count 1 and count 2. So the question for you is: is it proved beyond reasonable doubt that the accused fell short of the standard of driving of exercising due care by driving without due care or without reasonable consideration for other road users? We often, because it is such a long description, we often just describe it as 'driving without due care' or 'driving negligently' or 'driving without due consideration for other road users'.
[12]    I remind you again that the obligation to drive with due care is the duty to exercise the standard of care which one would expect of reasonably prudent drivers in like circumstances. The reasonably prudent driver is expected to drive with a defensive outlook, that is an outlook that not only sees immediate or immediately developing danger but looks well ahead and searches for potential danger. In deciding whether this element has been proved you must have regard to the evidence in this trial and decide objectively whether the actions of the accused fell below the standard that is expected of a reasonably prudent driver and you must find that proved beyond reasonable doubt.
[13]    So driving dangerously does not enter into it really, so just bear in mind that all you are considering in both counts 1 and 2 is whether it is proved beyond reasonable doubt that the driving is driving without due care.
His Honour then went on in the balance of his summing up to summarise the parties’ respective cases in relation to the appellant’s alleged want of due care without further reference to any comparator of dangerous driving.
After the jury had retired to commence considering their verdicts, they sent a note to the trial judge asking, amongst other things, for a copy of the summing up, or alternatively some further directions on the law in relation to the three counts. In redirecting the jury as to the elements of the offences, the trial judge said the following in relation to driving without due care:
[14] … So driving without due care is this: the obligation in law is to drive with due care, that is, to exercise the standard of care which one would expect of a reasonably prudent driver in like or similar circumstances. The reasonably prudent driver is expected to drive with a defensive outlook that not only sees immediate or immediately developing danger but looks well ahead and searches for potential danger.
[15] You are driving a car. It is a heavy object. It is an object that can do harm if you do not drive with due care. So you must decide objectively whether it is proved beyond reasonable doubt the actions of the accused fell below the standard that is expected of a reasonably prudent driver. If you are satisfied beyond reasonable doubt that his actions fell below the standard expected of a reasonably prudent driver then the second element of driving without due care would have been proved beyond reasonable doubt.
In my view, when directing a jury as to the meaning of driving without due care, in circumstances where there is no charge of dangerous driving, it will generally be undesirable to do so by reference to, and by comparison with, that more serious form of culpable driving.
I accept that by referring to dangerous driving the trial judge in this case was merely trying to assist the jury to understand the degree of culpability inherent in the notion of driving without due care, and in particular to emphasise that while it involves a departure from what is expected of a reasonably prudent driver, it does not require satisfaction that the defendant drove in a manner that any reasonable person in the situation of the defendant would recognise as involving a real danger to the public. However, the trial judge could have done so without making reference to the existence of a “scale of offences” involving bad driving, with dangerous driving being the “more serious” offence and driving without due care the “less serious” offence.
What the trial judge said was accurate. However, by doing so in terms that made reference to an offence that had not been charged, the trial judge introduced an irrelevancy that had the potential to distract the jury from, and potentially influence the jury in, their task of determining whether or not the prosecution had proved beyond reasonable doubt that the defendant drove without due care.
The capacity of the references to, and comparison with, offences involving dangerous driving to distract or influence the jury may be described in several ways. It may be said to have invited a focus by the jury upon whether the prosecution had proved the defendant’s driving involved driving without due care or driving dangerously, when the real issue for the jury was not a choice between these two forms of culpable driving but rather whether the prosecution had even proved that the defendant drove without due care. It may thus be said that it tended to convey or encourage an assumption that the defendant’s conduct involved at least the lesser level of culpability required by count 1. Alternatively, it may be said that it had the tendency to encourage the jury to view a conclusion that the defendant drove without due care as something of a compromise.
The capacity for the range of choices or comparators to affect decision making is well recognised. It underpins the High Court’s recognition in Gilbert v The Queen[1] and Gillard v The Queen[2] of the significance, in the context a charge of murder, of the trial judge’s failure to instruct the jury in relation to the alternative offence of manslaughter. In these cases, the High Court emphasised that appellate courts should not assume that a jury would take “a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences”; rather, they must recognise that juries “make their findings of fact in the context of instructions as to the consequences of such findings, and for the purpose of returning a verdict which expresses those consequences.”[3] It must also be recognised that it is “contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered”.[4] To suggest otherwise would be to ignore the “realities of the matter”, to use the expression of the majority in Mraz v The Queen.[5]
[1]    Gilbert v The Queen (2000) 201 CLR 414.
[2]    Gillard v The Queen (2003) 219 CLR 1.
[3]    Gilbert v The Queen (2000) 201 CLR 414 at [16] (per Gleeson CJ and Gummow J).
[4]    Gilbert v The Queen (2000) 201 CLR 414 at [101] (per Callinan J).
[5]    Mraz v The Queen (1955) 93 CLR 493 at 508.
It is true that the decisions in Gilbert v The Queen and Gillard v The Queen were influenced by the unique history of the law in relation to murder and manslaughter, and the gravity of a conviction for murder. It is for this reason that the plurality of the Court in James v The Queen[6] held that the approach in those earlier cases did not extend beyond the realm of murder and manslaughter to require that available alternative offences always be left to the jury.
[6] James v The Queen (2014) 253 CLR 475.
However, while the impact of the range of choices left to juries may not be as significant or stark in other contexts, this is not to deny that it has the capacity to influence a jury’s decision making. In making this point in James v The Queen, and describing it as “the insight of the majority in Gilbert v The Queen”, Gageler J referred to both authority from the United States and an academic article that have considered the broader relevance of choices and context in legal decision making.[7] The article[8] in particular considered the phenomena of the forms of bias, described as “compromise effects” and “contrast effects”, that may affect the evaluation of an option. It considered the capacity for the choice between two alternatives to be influenced by the presentation of a third alternative.
[7] James v The Queen (2014) 253 CLR 475 at [81]-[83].
[8] Kelman, Rottenstreich and Tversky, ‘Context-Dependence in Legal Decision Making’ (1996) 25 Journal of Legal Studies 287.
Gageler J was in dissent as to the outcome in James v The Queen, and hence differed as to the significance of the failure to leave the alternative offence under consideration in that case. Further, the decision of this Court in R v Suppiah[9] provides a reminder as to the limits of the significance of the phenomena to which I have referred. However, it seems to me that the insight of the majority in Gilbert v The Queen does have some potential significance beyond the realms of murder and manslaughter, and may inform a trial judge’s approach when directing a jury more broadly. The appellant’s submissions in support of the first ground of appeal invoked a form of this insight, albeit involving reference to an uncharged offence rather than the exclusion or misdescription of an offence that the jury is required to consider.
[9] R v Suppiah [2018] SASCFC 11 at [37]-[56], [144]-[154].
The respondent points out that in directing juries as to dangerous driving, trial judges routinely make reference to the lesser offence of driving without due care. Indeed, there are several authorities of this Court emphasising the desirability of doing so.[10] However, two observations may be made in response to this. The first is that directions making this comparison are often required by dint of driving without due care being an alternative offence to be left to the jury. The second is that in those cases the comparator is a lesser offence. For these reasons, while in my view there still exists the capacity for the use of the comparator to influence the jury’s decision making in such cases, this is both necessitated by the existence of the alternative charge and in any event generally only likely to operate in the defendant’s favour.
[10] R v Jaeschke (2007) 99 SASR 300 at [33]-[34]; The Queen v Mayne (1975) 11 SASR 583 at 585.
For the reasons I have given, I consider it was unnecessary and undesirable for the trial judge in this case to have made reference to the more serious offence of dangerous driving as a comparator. The trial judge could have and should have provided the jury with the assistance they needed in understanding the degree of culpability inherent in driving without due care without explicit reference to the more serious and uncharged offence of dangerous driving.
However, because what his Honour said was not inaccurate in any way, I do not regard his Honour’s approach as involving any error of law. Rather, in my view the issue is whether his Honour’s references to dangerous driving occasioned a miscarriage of justice in the particular circumstances of the present case. This, of course, requires consideration of the significance of the impugned passages from his Honour’s summing up in the context of the summing up, and indeed the trial, as a whole.
In my view, his Honour’s initial directions on driving without due care (in paragraphs [4] to [7] and [10], as I have numbered them) did involve an unfortunate focus upon the line between driving without due care and driving dangerously. In my view, if left at that, there would likely have been a miscarriage of justice by reason of a risk that the jury would be both distracted from the real issue and encouraged to view a finding of driving without due care as either a given or a compromise.
However, having been alerted by defence counsel to these risks, I consider that the trial judge’s subsequent directions were sufficient to avoid a miscarriage. Those directions (in particular at [11]-[13] when initially correcting the jury’s focus, and then at [14]-[15] when further redirecting the jury) were sufficient to ensure that the jury were ultimately focussed upon the true issue before them, and dissuaded from treating a finding of driving without due care as either a given or a compromise. In particular, at [11]-[13], the trial judge expressly told the jury to focus upon whether the prosecution had proved that the appellant drove without due care, and that his reference to dangerous driving would have been “better not mentioned” and “does not enter into it really”. His Honour accurately explained what driving without due care involved, in particular at [10]. Importantly, when redirecting the jury in response to their request for further directions, and hence in the last word on the topic, the trial judge (at [14]-[15]) directed the jury as to driving without due care in a manner that was succinct, accurate and without any reference to dangerous driving.
Having considered his Honour’s earlier references to dangerous driving in the context of the summing up as a whole, I do not think there was a risk that the jury would have misunderstood, or have otherwise been distracted or deflected from, their task. I am thus not satisfied that the appellant has established a miscarriage of justice.
Failing to stop and assist
The offence of leaving the scene of an accident after causing death by driving without due care contrary to s 19AB(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) is committed as follows:
(1)     A person who—
(a)     drives a vehicle or operates a vessel without due care or attention; and
(b)     by that conduct, causes the death of another; and
(c)     fails to satisfy the statutory obligations of a driver of a vehicle or an operator of a vessel (as the case may be) in relation to the incident,
is guilty of an offence.
The obligations of a driver of a vehicle involved in an accident in which a person is killed (or injured) are contained in s 43(1) of the Road Traffic Act and are as follows:
(1)The driver of a vehicle involved in an accident in which a person is killed or injured must—
(a)     immediately after the accident—
(i)     stop the vehicle; and
(ii)    give all possible assistance; and
(b)     not more than 90 minutes after the accident, present themself to a police officer at the scene of the accident or at a police station for the purpose of providing particulars of the accident and submitting to any requirement to undergo a test relating to the presence of alcohol or a drug in the driver’s blood or oral fluid.
...
(3)     It is a defence to a charge of an offence against subsection (1) to prove that—
(a)     the defendant was unaware that the accident had occurred and that the defendant’s lack of awareness was reasonable in the circumstances; or
(b)     in relation only to a failure to comply with subsection (1)(a), the defendant—
(i)genuinely believed on reasonable grounds that compliance with subsection (1)(a) would endanger the defendant’s physical safety, or the physical safety of another person; and
(ii)at the earliest opportunity notified police, ambulance or some other authority responsible for providing emergency services of the accident; or
(c)     in relation only to a failure to comply with subsection (1)(b), the defendant—
(i)     had a reasonable excuse for the failure to comply; and
(ii)presented themself to a police officer as soon as possible after the accident.
The appellant complains that the trial judge erred in directing the jury that the obligation upon the appellant to “stop the vehicle” immediately after an accident under s 43(1)(a)(i) of the Road Traffic Act required more than simply bringing the vehicle to a halt. The respondent, while accepting that his Honour did direct the jury to this effect, contends that his Honour was correct to do so given the compendious nature of the requirements under s 43(1)(a)(i) and (ii) to “stop the vehicle” and “give all possible assistance”; that considered in its statutory context, the requirement to stop connoted an obligation to stop for a sufficient period of time to enable the driver to give all possible assistance.
In response to this contention by the respondent, the appellant contends that whatever may be required by reason of the s 43(1)(a)(ii) obligation to “give all possible assistance”, the trial in the present case was conducted on the basis that the only obligation the appellant failed to comply with was the obligation to stop. The appellant further contends that in this forensic context it was erroneous, or at least productive of a miscarriage of justice, for the trial judge to direct that the appellant had an obligation to do more than bring his vehicle to a halt, and indeed to proffer several examples of what might have been done to provide assistance.
Given the potential relevance of the forensic context to his Honour’s directions, it is appropriate to summarise how the issues relevant to this ground of appeal emerged at trial.
It was the prosecution case in relation to count 2 that, having collided with and driven over the child, the appellant kept driving and did not stop his vehicle until he reached his own driveway. In this respect, the prosecutor opened the case to the jury on the basis that the appellant “failed to stop or render any assistance after the collision”, notwithstanding the call to the police made a short time after he arrived home. The prosecutor put to the jury that the alleged failure to comply consisted of a failure to stop and give all possible assistance, but that the requisite element could be made out by a failure to do either.
In making a statement to the jury outlining the issues in contention, defence counsel flagged a defence of genuine belief of physical endangerment under s 43(3)(b), and appeared to reflect an understanding that the failure alleged by the prosecution was a failure to stop and give all possible assistance.

Evidence led on the prosecution case invited, or at least left open, a conclusion that the appellant did not stop his vehicle at the scene. The prosecution relied in this respect upon the evidence of the deceased’s sisters, the two men walking along Branksome Terrace, and the neighbours who heard but did not see the collision and the vehicle taking off, all of which has been summarised earlier in these reasons.
The appellant’s evidence was that he stopped his vehicle, saw the child lying on the road, thought the child was dead and went home to phone the police or otherwise get help. Through his evidence, the appellant raised a defence of genuine belief on reasonable grounds that stopping would endanger his physical safety. He did so based upon a connection in his mind between the deceased child’s family and an earlier attempted home invasion of which he was the victim.
The defence case on the charge of leaving the scene was therefore two pronged: first, the appellant had complied with his statutory obligations by stopping and providing all possible assistance (by the making of the triple zero call); and secondly, or alternatively, any failure to comply was legally defensible.
By the time of her closing address, the prosecutor had essentially confined, or at least focussed, the prosecution case on the failure to comply with the statutory obligations of a driver to the appellant’s failure to stop the vehicle. Notwithstanding that the prosecution position had consistently been that the obligation to stop and provide assistance, and therefore the failure, was conjunctive and compendious in nature, the trial judge determined that the prosecution was prevented from relying upon a failure to provide assistance as it had not particularised the manner in which the appellant had failed to do so. This was over the objection of the prosecution to the effect that it was not necessary to confine the prosecution case in this way because any particularisation of how the appellant might have rendered assistance and failed to do so would not constitute an element of the offence or a material particular. However, the prosecution thereafter proceeded on the basis that guilt could nevertheless be established by establishing merely that the appellant had failed to stop.
It was for this reason, and in this context, that the trial judge’s directions to the jury on the element of the failure to comply with the statutory obligations of the driver were focussed upon the prosecution allegation of a failure to stop. His Honour initially addressed the obligation to stop in the following terms:
[16] Then there is a fourth element, which is additional to the elements for count 1 and that is it must be proved beyond reasonable doubt that the accused failed to satisfy his statutory obligations as a driver. Now, the statutory obligations relied on by the prosecution are the obligations to stop immediately and give all possible assistance. They are the obligations that the prosecution say he has failed to satisfy.
[17] Now, they say he has failed to satisfy them by failing to stop. They have not relied on any other things that they say he has failed to do, like rendering assistance, they have just said he failed to stop. That is the only one they have relied on.
His Honour then gave some directions in relation to the defence to non-compliance with statutory obligations under s 43(3)(b) based upon a genuine belief on reasonable grounds that stopping and rendering all possible assistance would endanger the appellant’s physical safety. His Honour then returned to the issue of the obligation to stop and said as follows:
[18]    Now, let me say something about what 'stopping' means because you will recall that the accused said, well, he did stop and then he drove off.
[19]    The requirement that the offender immediately after the accident stop the vehicle and give all possible assistance means more than a mere momentary reduction in the speed of the vehicle to 0 km/h. You do not fulfil the obligation to stop by just slamming on the brakes, 'Zero. Right, I've stopped. Off I go' because the law requires in requiring someone to stop, that the vehicle be stopped so as to put the driver in the position to be able to render all possible assistance. You might think that requires at least the driver to be able to know what has happened to the particular individual that has been hit. Rendering assistance might require the driver to move the person so he can breathe. You would have to know that the person was not breathing. You are not required to be a brain surgeon and conduct brain surgery at the side of the road, but rendering all possible assistance may require putting the person in the coma position, so that if he vomits, he does not choke on his own vomit. It may require moving the person off the road so the person does not get struck by other cars that are coming along. It may require warning oncoming cars that there is a person on the road who cannot move. It may require putting him in the shade. It may require giving him a glass of water. These things cannot be done by a mere stop without getting out of the vehicle and then driving off. You would need to get a decent look at the person injured or killed in order to decide how to give all possible assistance. You may not know whether the person was dead or not. This provision applies when a person is dead but you may not know that a person is dead and rendering all possible assistance might be avoiding a situation where a person is continually run over like a dead cat. So ladies and gentlemen, that is what is meant by 'stopping'.
[20]    Let me add that no-one has suggested in the particular circumstances of this case that the accused should have done any of the things that I have mentioned. It is not suggested by the prosecution that he should have done any of these things, but 'stopping' means being in a position to ascertain if any of these things need to be done and I have not sought to be exhaustive because no-one knows, different accidents can occur in different circumstances and rendering all possible assistance may well depend on exactly how the accident has taken place and the situation of the person who has been killed in the accident but you do not just fulfil that requirement to stop by, you know, 20 km/h, 10 km/h, 5 km/h, 0, 5 km/h, 10 km/h, off we go.
The following morning, when defence counsel made an application to declare a mistrial, the basis for this application included a complaint that the trial judge had put to the jury various steps the appellant might have taken should he have remained at the scene. Defence counsel complained that none of these matters formed part of the prosecution case, and had in any event not been put to the appellant. The trial judge responded that he had directed the jury that there was no suggestion that any of those things should have been done, and that he had mentioned them merely to explain why stopping meant “stopping properly”, and not momentarily, because “you need to ascertain what might need to be done by way of possible assistance.” His Honour, as I have mentioned, then declined the application for a mistrial.
In summarising the prosecution and defence cases to the jury his Honour then went on to outline the arguments put by each as to whether or not the appellant had stopped, referring in this context to the defence contention that the evidence was to the effect that he did stop. In the course of summarising the defence case in this respect the trial judge interposed “I explained to you that stopping means more than just getting to zero km/h.”
Subsequently, in the context of the further directions given by the trial judge in response to the request by jury for further assistance, his Honour included the following in relation to the present issue:
[21]    Now, the only thing that the prosecution has said he has not done and therefore failed to satisfy his statutory obligations, they said he has not stopped. So that is what you have to look at for this element. It must be proved beyond reasonable doubt that he did not stop and I have already explained what stopped means. It means more than just getting to zero km/h and then going off again. So they are the elements that must be proved beyond reasonable doubt to establish count 2. But you will remember that there is a defence to the fourth element, that the accused failed to satisfy his statutory obligations, in this case to stop.
[22]    If those four things are proved beyond reasonable doubt, then he is still to be acquitted if he proves on the balance of probability that he genuinely believed, that is, he honestly believed, it was his honest belief, No.1, and 2, there were reasonable grounds for a belief that stopping would have endangered his physical safety and at the earliest opportunity he notified police, etc.
[23]    Well, the prosecution have conceded that at the earliest opportunity he notified the authorities by the 000 call but what they have not conceded is that he stopped and I have explained what stopping means.
His Honour then made some similar observations in relation to the obligation to stop and give all possible assistance in the context of the alternative charge, count 3. His Honour concluded his redirection to the jury with the following:
[24] Of course you will remember that the accused says he did stop and the Crown say, well, he might have got to zero on one version of events but he did not stop in the sense that you do what you are required to do, check if the person needs assistance.
In my view, the obligations under s 43(1)(a)(i) and (ii) of the Road Traffic Act immediately after an accident to “stop the vehicle” and “give all possible assistance” are, at least for practical purposes, two parts of a compendious obligation. Put another way, the obligation to stop exists to facilitate the obligation to give all possible assistance, and must be construed in this context.
It follows that while, considered in the abstract, an obligation to stop might require merely a momentary halting of the driver’s vehicle,[11] the obligation to stop in s 43(1)(a)(i) of the Road Traffic Act requires more than this. It requires the driver of the vehicle to stop for a period of time sufficient to enable the driver to comply with their obligation under the following subsection to give all possible assistance. It requires that the driver stop for a sufficient period of time to enable the driver to make an assessment of the situation and hence what might be required by way of assistance to the person who has been injured or killed, and to be in a position to give such assistance as that person is able to give.
[11] Or, alternatively, an indefinite or permanent halting: see Mallan v Berry [1964] SASR 8 at 10.
In my view, this construction of the obligation to stop is not only required by the text, context and purpose of s 43(1)(a), but is also consistent with, and indeed supported by, the authorities in relation to both s 43(1)(a) and the analogous obligations upon drivers involved in accidents under predecessor legislation to stop and, if required by any person, provide the prescribed particulars.
In relation to s 43(1)(a), White J in Hill v Police[12] described the appellant as having not only brought his car to a halt but as also having “remained at the scene for a sufficient period of time such that it could not be concluded that he had not stopped as required by s 43(1)(a)”.
[12] Hill v Police [2009] SASC 308 at [24].
Turing to the predecessor legislation, in Noblet v Condon[13] Napier J said in relation to s 52(1) of the Road Traffic Act 1934 (SA):[14]
I should be very sorry to give the impression that a momentary pause will exempt the driver of a motor-car which is involved in an accident, from the necessity for stopping to give the particulars contemplated by the section. Upon my view of the section, the obligation is to stop for such a period as may be reasonable to enable the questions to be put, if there is anybody in the vicinity who desires to put them …
[13] Noblet v Condon [1935] SASR 329.
[14] Noblet v Condon [1935] SASR 329 at 330.
To similar effect are the following observations of Mayo J in Mallan v Berry:[15]
The obligation to stop, under s 43(3)(a), so far as the cessation of motion is concerned, introduces no difficulty. But if the word stood alone unassociated with any purpose, nor sufficiently related to attendant circumstances, the duty might be continuous, and indeed, never ending. Even the duty to report to the police in placitum (c) does not necessarily involve moving of the vehicle.
Both words “stop” and “forthwith” are to be interpreted by having regard to placitum (b). The latter provision contains an obligation that is quite independent of the mandate in the earlier placitum, but it does give rise to an inference of the purpose of the interruption of movement. The object is to give other persons, who have reasonable grounds to ask for the information mentioned in the latter placitum, an opportunity to make inquiry. If persons, who might be expected to be interested, are present and show no intention of acting, the period in which a driver is bound to stop may be regarded sooner or later as terminating.
[15] Mallan v Berry [1964] SASR 8 at 10-11.
Mayo J later added:[16]
The duty to stop is by implication for no longer period than that an interested person present, or near at hand, will have the right, under placitum (b), either to exercise it, or to indicate he intends so to do.
[16] Mallan v Berry [1964] SASR 8 at 11.
In Critchley v Downs[17] Hogarth J applied the passage from the reasons of Napier J in Noblet v Condon extracted above before stating:[18]
I think that placitum (a) must be read as being in aid of the rights given to interested person under placitum (b). It does not impose upon the driver a duty to seek out other interested persons. It does, however require him, in the circumstances described by the section, to stop his vehicle; and further, he must leave it stationary and himself remain nearby for a sufficient time to enable interested persons to come to the scene of the accident, providing they come without delay, and to ask him for the information referred to in placitum (b). I do not think that placitum (a) requires a driver to continue to wait if the circumstances suggest that there is no interested person in the vicinity; or that, if there is, he will not come to the scene of the accident without delay; or that, if present, he will not exercise his rights under placitum (b) with reasonable promptitude.
[17] Critchley v Downs [1964] SASR 350.
[18] Critchley v Downs [1964] SASR 350 at 355.
And in Norling v Woolacott[19] Travers J referred to the above decisions and added:[20]
To merely stop the vehicle does not comply with the requirements of the section. The requirement to stop must be read secundum subjectam materiam. The plain object of the section is to enable information to be obtained as to who was the cause of an accident.
[19] Norling v Woolacott [1964] SASR 377.
[20] Norling v Woolacott [1964] SASR 377 at 380.
The passage from the reasons of Napier J in Noblet v Condon extracted above was also applied by the English Court of Appeal in the context of equivalently worded legislation in Lee v Knapp.[21]Winn LJ (with whom Lord Parker CJ and Widgery J agreed) said:[22]
I gratefully and respectfully adopt what was said by Napier J, in that decision, and for my own part I too think that in s. 77 (1) of the Road Traffic Act, 1960, the phrase “the driver of the motor vehicle shall stop” is properly to be construed as meaning the driver of the motor vehicle shall stop it and remain where he has stopped it for such a period of time as in the prevailing circumstances, having regard in particular to the character of the road or place in which the accident happened, will provide a sufficient period to enable persons who have a right to do so, and reasonable ground for so doing, to require of him to direct and personally the information which is provided for in s. 77 (1). It is the driver’s own personal obligation to stay for such a period as I have indicated, and personally to provide the information.
[21] Lee v Knapp [1966] 3 All ER 961.
[22] Lee v Knapp [1966] 3 All ER 961 at 963.
On the construction of the obligation to stop that I have adopted, there was no error in the trial judge’s direction to the effect that it entailed more than a momentary halting. To the contrary, it was an accurate and appropriate direction.
Further, it was accurate and appropriate for his Honour to explain (as he did in [19] and [20]) that the obligation to stop under s 43(1)(a)(i) of the Road Traffic Act, required that the driver stop for a sufficient period of time to enable the driver to make an assessment of the situation and hence what might be required by way of assistance to the person who had been injured or killed, and to enable the driver to be in a position to give such assistance as that he or she is able to give.
There remains the appellant’s complaint that the trial judge erred by referring to various forms of assistance that might have been rendered when these did not form any part of the prosecution case (whether as confined by the trial judge or otherwise).
I observe in passing that I am not persuaded that it was necessary for the trial judge to confine the prosecution case in the way he did. In my view, the prosecution was entitled to have the jury determine whether or not the appellant’s conduct in returning home to call emergency services involved a failure to give all possible assistance. It was perhaps also undesirable to confine the prosecution case in this way given the compendious nature of the obligation under s 43(1)(a). However, I express no concluded view about this because it was a decision that was not only favourable to the appellant, but also ultimately irrelevant to the disposition of this appeal.
While the trial judge’s confinement of the prosecution case meant that it was not necessary for the jury to determine whether in fact the appellant had failed to give all possible assistance, some consideration of what this might have entailed was nevertheless necessary and appropriate in assisting the jury to understand the content of the obligation to stop. And, in my view, this is how the jury would have understood the trial judge’s description (at [19]) of some of the forms of assistance that might typically be provided at the scene of an accident. His Honour did not suggest that the appellant could have or should have taken any of the steps described. To the contrary, his Honour made it plain (at [20]) that “no-one has suggested in the particular circumstances of this case that the accused should have done any of the things that I have mentioned”, and emphasised (at [21]) that “the only thing that the prosecution has said he has not done and therefore failed to satisfy his statutory obligations, they said he has not stopped.”
In the circumstances, I am satisfied that the jury would have understood that while the prosecution was not alleging that there was in fact any further assistance that the appellant was able to provide, it nevertheless remained for them to determine whether the appellant stopped for a sufficient period to make a proper assessment of the situation and what assistance he might have been able to provide.
I acknowledge that there is a slight tension between acceptance that in fact there was no further assistance that the appellant could have provided and the suggestion that the jury might nevertheless find that the appellant did not stop for a sufficient period of time to assess the situation. However, properly understood, there is no necessary inconsistency between the two. The obligation to stop carries with it an obligation to do so for a sufficient time to make the assessment I have described. And that is so regardless of whether it can be said, with the benefit of hindsight, that there was nothing further that the driver could usefully have done.

This conclusion is consistent with the approach taken in the cases to which I have referred in relation to the obligation to stop and, if requested, provide particulars. Those case make it plain that there may be a failure to stop even if, with the benefit of hindsight, it can be said that no-one would have requested the particulars.
For the reasons given, the appellant’s challenge to the trial judge’s directions in relation to the obligation to “stop the vehicle” under s 43(1)(a)(i) of the Road Traffic Act must fail.
Inappropriate remarks
The appellant’s third ground of appeal involves a contention that by referring in his summing up (at [19]) to “avoiding a situation where a person is continually run over like a dead cat”, the trial judge engaged in commentary that was either contrary to the decision of the High Court in McKell v The Queen,[23] or at the very least involved the use of language that was inappropriately emotive and inflammatory.
[23] McKell v The Queen (2019) 93 ALJR 309.
I commence my analysis of this ground by observing that his Honour’s reference to a dead cat was unfortunate. I can well understand the point his Honour intended to convey, namely that the language and purpose of the obligation in s 43(1) extends to a situation in which a person has been not just injured but also killed. As such, the provision of assistance may, depending upon the circumstances, extend to protecting a person’s body (even if they are, or appear to be, dead) from other traffic on the road. However, this point could have been made without reference to a dead animal.
While his Honour did not expressly link his example to the facts of the present case, the use of this example or analogy was not only unnecessary, but also unhelpful and unfortunate. It was unhelpful and unfortunate because it risked adding further emotion to what was undoubtedly already an emotionally charged atmosphere at trial. The remark might not only have been seen as disrespectful towards the deceased child, but as also potentially exciting an emotional response from the jury that might have distracted them from their consideration of the real issues in the case.
The trial judge having warned the jury to decide the case on the merits and to not let themselves be distracted by their sympathies and emotion, it was unfortunate that his Honour potentially added to the difficulty of the jury’s task in this respect. It is particularly unfortunate that his Honour did so in circumstances where he had, in the absence of the jury, earlier foreshadowed making a remark to this effect (albeit by reference to a different animal) and had been asked not to do so by counsel for the appellant.
However, even accepting that the remark was unfortunate and should not have been made, it does not necessarily follow that it was productive of a miscarriage of justice. In assessing the capacity for the remark to have had that effect, it is important to bear in mind the particular context in which the remark was made. It was made in the context of his Honour giving examples of the assistance that might be given in the aftermath of an accident in an effort to explain the content of the obligation to stop. It was not intended to be, and would not have been understood as, a description of something that the appellant failed to do or ought to have done on the facts of this case. And it was certainly not a suggestion that the appellant did treat the deceased child as a dead cat.
The case is thus distinguishable from the circumstances in R v Carberry[24] where the trial judge’s insensitive and intemperate language and analogy were more closely directed to the jury’s consideration of the defendant’s conduct, and indeed were expressed in a way that gave rise to a risk that the jury may have understood that the trial judge was expressing his own view as to a matter in dispute.[25]
[24] R v Carberry [2014] SASCFC 78.
[25] R v Carberry [2014] SASCFC 78 at [35]-[44].
In the present case, I do not regard his Honour’s remarks as a comment upon the facts of the case at all, let alone one proscribed by McKell v The Queen.[26] Further, while I repeat my view that the remark was unhelpful and unfortunate, I am not satisfied it was productive of a miscarriage of justice. I do not think it conveyed, or would have been understood as conveying, any criticism of the appellant. And while perhaps momentarily distracting, and adding to the emotion at trial, I do not think there is any risk that the jury were ultimately diverted from, or influenced in, their task by what the trial judge said.
[26] McKell v The Queen (2019) 93 ALJR 309.
Conclusion
The respondent having conceded that grounds 1 and 2 raised questions of law, a Judge of this Court referred all three grounds of appeal to this Court. I would grant permission to appeal in respect of ground 3. But for the reasons given, I have not upheld any of the grounds and so would dismiss the appeal.