Little v Police - [2016] SASC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LITTLE v POLICE
[2016] SASC 80
Judgment of The Honourable Justice Doyle
7 June 2016
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 - CAUSATION
The appellant was charged with aggravated driving without due care (the primary charge) and driving without due care (the alternative charge). The circumstance of aggravation was that the appellant’s driving caused the death of the deceased. The Magistrate found the appellant guilty of both counts.
The appellant appealed on grounds which included that the Magistrate erred in convicting him of both the primary and alternative offence, in finding that he drove without due care, and in finding that the circumstance of aggravation was established.
Held (per Doyle J), allowing the appeal in part:
1. No error has been established in the Magistrate’s finding of guilt in respect of the primary charge.
2. Having found the appellant guilty of the primary offence, the Magistrate erred in finding the appellant guilty of the alternative offence.
Road Traffic Act 1961 (SA) s 45, referred to.
Van Den Heuvel v Tucker (2003) 85 SASR 512, distinguished.
Taylor v Hayes (1990) 53 SASR 282; Fox v Percy (2003) 214 CLR 118; Stoeckel v Harpas (1971) 1 SASR 172; Police v Melisi (2010) 106 SASR 105; Brooks v Police (2013) 116 SASR 234; W, AJ v Police (2011) 111 SASR 83; Royall v The Queen (1991) 172 CLR 378; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, considered.

LITTLE v POLICE
[2016] SASC 80
Magistrates Appeal
DOYLE J:

The appellant was charged with two counts, namely aggravated driving without due care and driving without due care. They were charged in the alternative. The circumstance of aggravation alleged was that the appellant’s driving caused the death of the deceased.
The Magistrate found both counts proven. The appellant appeals on grounds which include that the Magistrate erred in convicting him of both the primary and alternative offence, in finding that he drove without due care, and in finding that the circumstance of aggravation was established.
Circumstances of the collision
Shortly before 9.00 am on 7 May 2013, a white Nissan four-wheel drive utility driven by the appellant collided with a red Mazda four-wheel drive driven by the deceased. The deceased died as a result of injuries suffered in the collision. The appellant was charged with the two offences the subject of these proceedings, both involving alleged contraventions of s 45 of the Road Traffic Act 1961 (SA).
The collision occurred in rural South Australia on Pudneys Road near where it intersects with Glynns Road. The Magistrate described Pudneys Road as running north-south, with Glynns Road running in a south-westerly direction to the point where it intersects with Pudneys Road in a T-junction.[1] Immediately prior to the accident, the deceased…

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 [2016] SASC 80
Case: [2016] SASC 80
Decision Date: 7 June 2016

CaseChat Overview and Summary

Little appealed against his conviction for driving without due care and attention, which caused the death of a pedestrian. The case was heard by the Supreme Court of South Australia. The appellant contended that the magistrate's findings that he drove without due care and attention and that his driving caused the death of the deceased were not supported by the evidence. The appellant submitted that the expert evidence demonstrated that even if he had been driving at a reasonable speed, the accident would have occurred due to the failure of the vehicle's axle. The appellant argued that the magistrate erred in finding that he could have avoided the accident if he had been driving at a reasonable speed.

The court considered whether the appellant's driving caused the death of the deceased and whether he drove without due care and attention. The court examined the evidence and found that there was no expert evidence to the effect that at some lower speed there was no realistic chance of avoiding the accident. The court held that it was open to infer, and the evidence led made it appropriate as a matter of common sense and experience to infer, that at the slower speed of the reasonably prudent driver, the appellant would beyond reasonable doubt have been able to avert the collision.

The appeal was allowed to the extent that the magistrate's finding of guilt in respect of count 2 was set aside. The appeal was otherwise dismissed.

[16] Van Den Heuvel v Tucker (2003) 85 SASR 512 at [101].

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, this case is factually distinguishable. It was significant in Van Den Heuvel v Tucker that there was expert evidence to the effect that even at the speed of 110 km/h (which the trial judge had found was a reasonable speed, and which was 30 km/h less than the speed at which the appellant contended the defendant was negligently driving), the failure of the axle was such that the defendant had no realistic chance of avoiding the accident.[16] In the face of that evidence, there was no basis for the Court to infer that driving at a reasonable speed would have avoided, or have materially increased the chances of avoiding, the accident in the absence of specific evidence. On the other hand, in the present case, there was no expert evidence to the effect that at some lower speed there was no realistic chance of avoiding the accident. In my view, that left it open to infer, and the evidence which was led made it appropriate as a matter of common sense and experience to infer, that at the slower speed of the reasonably prudent driver, the appellant would beyond reasonable doubt have been able to avert the collision. In my view, for the reasons I have earlier explained, that inference could properly be drawn in the circumstances of this case despite the absence of positive evidence as to the precise speed at which the reasonably prudent driver would have driven. It was sufficient to approach the matter on the basis he or she would have driven at a “considerably slower” speed.[16] Van Den Heuvel v Tucker (2003) 85 SASR 512 at [101].Conclusion In my view, the grounds of appeal challenging the Magistrate’s findings that the appellant drove without due care and that his driving caused the death of the deceased have not been made out. It follows that the appeal must be dismissed in so far as it challenges the Magistrate’s finding of guilt in respect of the primary or aggravated offence comprising count 1. However, for the reasons set out earlier, it is appropriate that I set aside the finding of guilt in respect of the alternative offence comprising count 2. I therefore order:1. The appeal is allowed to the extent that the Magistrate’s finding of guilt in respect of count 2 is set aside.2. The appeal is otherwise dismissed.

Ratio Decidendi

Legal Principle Established

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