Nelson v Police - [2011] SASC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NELSON v POLICE
[2011] SASC 55
Judgment of The Honourable Chief Justice Doyle
20 April 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER OFFENCES
A Magistrate found the appellant guilty under s 29(3) of the Criminal Law Consolidation Act 1935 (SA) for driving his vehicle in a dangerous manner and performing burnouts and doughnuts in close proximity to a crowd of spectators – appeal against finding of guilt – whether the conduct gave rise to a real or substantial risk of harm – whether the appellant was aware of a real or substantial risk that his conduct could cause harm.
Held: appeal dismissed – the appellant’s conduct was likely to cause harm because it was a form of driving that gave rise to a real risk of harm in the circumstances of the case.
Criminal Law Consolidation Act 1935 (SA) s 21, s 23, s 24, s 29(1), s 29(2), s 29(3), s 29(3)(b); Crimes Act 1958 (Vic) s 22, referred to.
R v Parenzee (2008) 101 SASR 469; R v Abdul-Rasool (2008) 18 VR 586, discussed.
Bedi v The Queen (1993) 61 SASR 269, considered.

NELSON v POLICE
[2011] SASC 55
Magistrates Appeal: Criminal

DOYLE CJ: Mr Nelson appeals against a decision by a Magistrate finding him guilty of an offence against s 29(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The charge is based on an incident in which Mr Nelson drove a motor car and performed manoeuvres including what are commonly called a burnout and a doughnut.
He appeals on the ground that the evidence before the Magistrate did not support the Magistrate’s finding that the offence was proved.
Facts
Section 29(3) of the CLCA provides as follows:
(3)Where a person, without lawful excuse, does an act or makes an omission—
(a) knowing that the act or omission is likely to cause harm to another; and
(b) intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
the person is guilty of an offence.
The preceding two subsections are to a like effect, save that subsection (1) deals with conduct that is likely to endanger the life of another and subsection (2) deals with conduct that is likely to cause serious harm to another, as distinct from harm.
Section 21 of the CLCA defines “recklessly” as follows:
Recklessly — a person is reckless in causing harm or serious harm to another if the person —
(a) is aware of a substantial risk that his or her conduct could result in harm or serious harm (as the case requires); and
(b) engages in the conduct despite the risk and without adequate justification;
On its terms this definition does not apply to an offence against s 29. Section 21 defines “recklessly” in the context of causing harm or serious harm. Offences involving the…

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 Nelson v Police

Details

AGLC: Nelson v Police [2011] SASC 55
Case: [2011] SASC 55
Decision Date: 20 April 2011

CaseChat Overview and Summary

In Nelson v Police, the appellant challenged the decision of a Magistrate who found him guilty under section 29(3) of the Criminal Law Consolidation Act 1935 (SA) for driving his vehicle in a dangerous manner and performing burnouts and doughnuts in close proximity to a crowd of spectators. The appeal before the Supreme Court of South Australia focused on whether the appellant's conduct constituted a real or substantial risk of harm and whether he was aware of this risk.

The key legal issues addressed by the court involved the interpretation of recklessness under section 29(3)(b) of the CLCA, and whether the evidence supported the Magistrate's finding of guilt. The appellant argued that his conduct did not give rise to a real or substantial risk of harm and that he was not reckless. The court had to determine whether the Magistrate's interpretation of recklessness and the assessment of risk was legally sound and supported by the evidence.

The court found that the Magistrate's approach to interpreting recklessness was consistent with the statutory definition, even though the statutory definition does not explicitly apply to section 29(3)(b). The court noted that the Magistrate's conclusion was open to him based on the evidence provided. The evidence showed that the appellant's conduct, captured on video and observed by an undercover police officer, involved performing burnouts and doughnuts in a public street with a crowd of about 60 spectators present. The court determined that the appellant’s actions were reckless as they gave rise to a real risk of harm. The appeal was dismissed, and the conviction was upheld.

The court ordered that the appeal against the conviction be dismissed, affirming the Magistrate's decision.

Orders

Orders of the court

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Background

Background to the litigation

He appeals on the ground that the evidence before the Magistrate did not support the Magistrate’s finding that the offence was proved. Facts Section 29(3) of the CLCA provides as follows:(3)Where a person, without lawful excuse, does an act or makes an omission—(a) knowing that the act or omission is likely to cause harm to another; and(b) intending to cause such harm or being recklessly indifferent as to whether such harm is caused,the person is guilty of an offence.The preceding two subsections are to a like effect, save that subsection (1) deals with conduct that is likely to endanger the life of another and subsection (2) deals with conduct that is likely to cause serious harm to another, as distinct from harm. Section 21 of the CLCA defines “recklessly” as follows:Recklessly — a person is reckless in causing harm or serious harm to another if the person —(a) is aware of a substantial risk that his or her conduct could result in harm or serious harm (as the case requires); and(b) engages in the conduct despite the risk and without adequate justification; On its terms this definition does not apply to an offence against s 29. Section 21 defines “recklessly” in the context of causing harm or serious harm. Offences involving the causing of harm and serious harm are created and regulated by s 23 and s 24 of the CLCA. The definition, on its terms, is applicable only to those sections. No submissions were directed to this point. I did not notice it myself during argument. I consider that nothing turns on the point. I consider that the concept of “being recklessly indifferent” for the purposes of s 29(3)(b) of the CLCA has the meaning given to the word “recklessly” by s 21. Without reference to s 21 of the CLCA I would have interpreted s 29(3)(b) as referring to, or as requiring proof of, conduct giving rise to a probability of harm, or substantial risk of harm, and awareness of that probability or substantial risk of harm, and a decision to engage in the relevant conduct nevertheless. There is no significant dispute about the circumstances. The events occurred at about 4.30am in a cul-de-sac called Burdon Street. The events were observed by an undercover police officer, who also filmed the events using a handheld video camera. He gave evidence and the film of the events was tendered. He was the only witness. The incident the subject of the charge is identified as an incident lasting for about 17 seconds during the course of the film. Certain witness statements were also tendered by agreement. None of them bear directly on the conduct in question, although there is one aspect of one statement to which I will refer shortly. It was dark at the time in question. The street was lit by standard street lighting. The evidence was that Burdon Street was about 230 metres long, and about 10 metres wide. There was a grassed footpath on either side. It was lined by commercial premises. There were no residential premises. The commercial premises were closed at the time. At the end of Burdon Street there was a circular turning area, referred to by the witness as a “bowl”. The road surface appears to be bitumen in a reasonable condition. The police officer arrived at the same time as a number of other people. Cars had parked and were parking along Burdon Street, parallel to the kerb. A number of people got out of cars, evidently intending to watch what they were expecting to happen. There were about 60 spectators in all. They were moving around on Burdon Street.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ms Chapman criticises the Magistrate’s reliance on a case to which he referred, arguing that the circumstances of the two cases are quite different. I agree that they are. But my understanding of the Magistrate’s reference is that it was a reference to the Judge’s approach to the question of proof of the offence, rather than a comparison between the facts of the two cases, on which the Magistrate relied. In para [20] of his reasons, set out above, the Magistrate summarised his reasoning in relation to proof of reckless indifference. There is no error in the approach that he took. The conclusion that he reached was open to him on the evidence.Conclusion For those reasons I am not persuaded that there was any error made by the Magistrate. I dismiss the appeal against conviction.

Ratio Decidendi

Legal Principle Established

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