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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bullock v The Queen

Details

AGLC: Bullock v The Queen [2019] SASCFC 131
Case: [2019] SASCFC 131
Decision Date: 29 October 2019

CaseChat Overview and Summary

The appellant, Bullock, was charged with aggravated driving without due care causing death, leaving the scene of an accident after causing death, and alternatively, failing to stop and assist after an accident. The charges arose from a collision on Branksome Terrace where the appellant's vehicle struck and killed a young child. The appellant did not stop at the scene but drove to his nearby residence. The case was heard in the Supreme Court of South Australia.

The legal issues before the court concerned the grounds of appeal raised by the appellant, specifically relating to alleged misdirection or non-direction by the trial judge to the jury. The appellant contended that certain remarks made by the trial judge constituted an expression of the judge's own opinion, which could have led to a miscarriage of justice.

The court considered whether the trial judge's remarks amounted to a comment on the facts of the case that was proscribed by established legal principles. While acknowledging that a particular remark was unhelpful and unfortunate, the court found that it did not constitute a comment on the facts, nor did it convey any criticism of the appellant. Crucially, the court was not satisfied that the remark resulted in a miscarriage of justice, concluding that the jury was not diverted from or improperly influenced in their task.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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