Little v Police - [2017] SASCFC 8

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
LITTLE v POLICE
[2017] SASCFC 8
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Lovell)
16 February 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
Appeal against conviction. The appellant was found guilty by a Magistrate of driving without due care. The offence was aggravated by death having resulted from the offence. An appeal to a single Judge of this Court was dismissed but permission was granted to appeal to the Full Court. Where both the Magistrate and the single Judge found that the appellant drove without due care by entering the intersection at a speed which was too fast. Where both the Magistrate and the single Judge found that the appellant's driving was a substantial cause of the collision leading to death.
The appellant takes six grounds of appeal. Whether the Judge erred in his approach to proof. Whether the Judge erred in his use of evidence of the practice of most drivers on that road. Whether the Judge failed to undertake an independent assessment of the evidence. Whether the Judge erred in arriving at his own meaning of the word "understeering". Whether the Judge erred in his approach to causation.
Held per Vanstone J (Kourakis CJ and Lovell J agreeing): None of the grounds of appeal have been substantiated. Appeal dismissed.
Burns v The Queen (2012) 246 CLR 334; Royall v The Queen (1991) 172 CLR 378, considered.

LITTLE v POLICE
[2017] SASCFC 8
Full Court: Kourakis CJ, Vanstone and Lovell JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Vanstone J.
VANSTONE J: Jack James Little was found guilty by a Magistrate of driving without due care. The offence was aggravated by death having resulted from the offence.
An appeal against that conviction was heard by a single Judge of this Court. That appeal was dismissed, but the Judge granted permission to appeal to the Full Court. The grounds raise the Judge’s approach to the appeal and various factual findings made by him.
For the reasons which follow, I consider the appeal should be dismissed.
Background
The collision occurred on 7 May 2013 near to the junction of Pudneys Road and Glynns Road, near Kongorong, which lies south-east of Carpenter Rocks. The road surface at the collision site comprised white crushed limestone. The road surface was 4.8 metres wide with no line markings. At the time of the collision it was slightly damp. A vehicle is said to be about 1.9 metres in width.
Prior to the collision, the deceased, Mr Von Duve, was driving in his Mazda four-wheel drive vehicle along Pudneys Road in a north-west direction. The appellant was travelling south along Glynns Road in his Nissan four‑wheel drive utility vehicle. Each driver was alone. The two roads…

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 Little v Police

Details

AGLC: Little v Police [2017] SASCFC 8
Case: [2017] SASCFC 8
Decision Date: 16 February 2017

CaseChat Overview and Summary

This case concerned an appeal to the Supreme Court of South Australia following a conviction for culpable driving causing death. The appellant, the driver of a Nissan utility vehicle, was involved in a collision with a Mazda four-wheel drive vehicle driven by the deceased, Mr. Von Duve. The collision occurred at a Y-junction where Glynns Road, on which the appellant was travelling, met Pudneys Road, on which the deceased was travelling. The appellant was required to give way to traffic on Pudneys Road. The appellant’s account was that he was travelling at approximately 80 km/h on Glynns Road, slowing to between 50 and 60 km/h as he entered the turn, and first saw the deceased’s vehicle as he was already committed to the turn.

The legal issues before the Supreme Court included whether the appellate judge erred in his assessment of the evidence and the applicable legal principles. Specifically, the appellant argued that the judge had incorporated the appellant's knowledge of a customary driving practice on that type of road surface into the objective standard of care, thereby holding the appellant to a higher standard. This practice involved drivers positioning their vehicles closer to the centre of the road to utilise the better surface. The appellant also contended that the judge failed to undertake an independent assessment of the evidence when considering the ground of appeal that the Magistrate's verdict was unreasonable, unsatisfactory, and against the weight of the evidence.

The Court found that the appellate judge had correctly applied the objective standard of care, which required a driver to exercise a level of defensiveness appropriate to the circumstances. The judge recognised that the standard of care was an objective determination and that a defensive driver should foresee the general possibility of danger at a junction, including the risk that another driver might not adhere to the required standard of care. The Court held that the judge did not expect a reasonably prudent driver to know of the specific customary practice or to drive in anticipation of another driver departing from it. Instead, the judge considered that a defensive outlook encompassed foreseeing a range of potential dangers at the junction. The Court also found that the judge had fulfilled his obligation to undertake an independent assessment of the evidence.

The Court concluded that none of the grounds of appeal were substantiated and therefore dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, I consider the appeal should be dismissed. Background The collision occurred on 7 May 2013 near to the junction of Pudneys Road and Glynns Road, near Kongorong, which lies south-east of Carpenter Rocks. The road surface at the collision site comprised white crushed limestone. The road surface was 4.8 metres wide with no line markings. At the time of the collision it was slightly damp. A vehicle is said to be about 1.9 metres in width. Prior to the collision, the deceased, Mr Von Duve, was driving in his Mazda four-wheel drive vehicle along Pudneys Road in a north-west direction. The appellant was travelling south along Glynns Road in his Nissan four‑wheel drive utility vehicle. Each driver was alone. The two roads met in what could be described as a Y-junction, with Pudneys Road forming the left side and lower part of the “Y”, and Glynns Road the right arm of it. Both roads were governed by speed limits of 100 kilometres per hour. Facing the appellant as he approached the junction was a sign warning of a T-junction ahead. Therefore, the appellant was required to give way to all traffic on Pudneys Road. Facing the deceased as he approached the junction was a sign warning of a road crossing ahead. Evidence of the way in which the collision occurred came from the appellant’s interview with police given on the day following the collision, as well as his evidence at trial, and from expert accident reconstruction evidence given by Sergeant Cox for the prosecution, and Mr Graham England, for the defence. The Magistrate found that the appellant’s interview and evidence were “largely consistent” and that the road markings found at the scene were consistent with the appellant’s account of the incident. He based his findings “substantially” on the defendant’s account. The appellant told police that, as he headed south on Glynns Road, he was travelling at 80 kilometres per hour, and then, “coming into the corner [he] started slowing down”. Asked about his speed going into the corner, he said:I’d say I estimate 60 to 50. The appellant said that he was already turning when he saw the Mazda. He had not seen it any earlier because of the vegetation to his left. He was “committed to turning” by the time he saw it.He said:When I first saw him it felt like we were travelling at similar speeds. ... Like when I first saw him and then I, I was just basically trying to get out of it.He said:[I]t didn’t feel as though his car slowed down or anything but it all happened so fast so I don’t, I wouldn’t ... There was slight disagreement between Sergeant Cox and Mr England about the location of the point of impact. Mr England placed it at two metres from the western side of Pudneys Road, that is, on the deceased’s side of the road. Sergeant Cox put it still further onto the deceased’s side. On this point the Magistrate preferred Mr England’s conclusion, but either way, the point of impact was on the Mazda’s side of the (theoretical) centreline.

Evidence

Evidence Before The Court

These grounds are not made out. Ground 1 – Use of the evidence of custom I have referred to the practice which many country drivers on this road surface customarily follow of driving nearer the centre of the road so that all wheels are on the better part of the surface. The appellant gave evidence of such a practice. He said that he would sit with his right-hand tyres in the centreline of the road and move as far as possible to the left upon seeing another driver approaching or when approaching a corner or intersection. Under this ground the appellant argues that the Judge imported into his determination of the required standard of care the esoteric knowledge which the appellant had about the practice, thereby holding the appellant to a higher standard of care. It was suggested that the specific risk relating to this particular roadway and the suggestion that drivers should drive in the expectation that oncoming traffic would be not only “in the middle of the road”, but would not move away, had been imported into that standard. The background to this argument is as follows. To the single Judge it was complained that the Magistrate failed to have regard to the practice. The Judge found the complaint to be misplaced. He said the Magistrate was “clearly conscious of this practice in preparing his reasons”: [35]. Now the complaint is that the Judge incorporated knowledge of the practice into the objective standard. Neither of these two somewhat contradictory arguments is correct. An examination of the Judge’s reasons demonstrates as much. The Judge recognised at the outset that the standard of care was an issue to be determined objectively: [29]. It required a level of defensiveness in the driver’s speed appropriate to the circumstances confronting the driver: [42]. The Judge rejected the appellant’s complaint that the Magistrate failed to take the practice into account, observing that, on a proper reading of the Magistrate’s reasons, his focus was not on the precise risk that arose, but on the more general basis that a defensive driver should have foreseen the general possibility of danger at the junction: [36]. That danger could have taken a number of forms. It is wrong to say that the Judge expected the reasonably prudent driver to know of the specific practice referred to by the appellant and to drive in the expectation that another driver might depart from it. What he said was that the defensive outlook required of drivers related to the range of dangers which the junction might present and extended to foreseeing the possibility that another driver might drive in a way which did not meet the standard: [36].Ground 2 – Complaint that Judge failed to undertake independent assessment The appellant argues that the Judge failed to undertake an independent assessment of the evidence before the Magistrate in disposing of the ground (then numbered 1) which complained that the verdict was “unreasonable, unsatisfactory and against the weight of the evidence”. It is common ground that there was such an obligation on the Judge. What is in dispute is whether he fulfilled his duty.

Decision

Reasons for decision

No error is made out. Conclusion None of the grounds of appeal has been substantiated. I would dismiss the appeal. LOVELL J: I agree with Vanstone J.

Ratio Decidendi

Legal Principle Established

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