Ducaj v The Queen

The Supreme Court of South Australia, constituted by Kourakis CJ, Kelly, Peek, Stanley, and Nicholson JJ, heard an appeal against conviction. The appellant had been found guilty of aggravated creating a likelihood of harm contrary to s 29(3) of the *Criminal Law Consolidation Act 1935* (SA).

The appeal raised two grounds: first, that the trial judge misdirected herself on the elements of the offence, specifically regarding the requirement of reckless indifference under s 29(3)(b), by holding that proof of this element only required the prosecution to establish the appellant's awareness of a substantial risk of harm and a decision to proceed with the conduct regardless; and second, that the trial judge erred in concluding that the offence was proven on the facts as found.

The Full Court dismissed the appeal. The majority found that the trial judge's implicit finding that the driving was objectively likely to cause harm, despite her Honour's more limited finding of a "real or substantial risk of harm," was sufficient. In the absence of evidence of any lawful excuse or adequate justification for the appellant's driving, the element of recklessness was necessarily made out on that finding.