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 55Magistrates 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…
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- Nelson v Police [2011] SASC 55
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- [2011] SASC 55
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CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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