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 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.
After some manoeuvres were carried out by Mr Nelson in his car, and by another driver in another car, the incident the subject of the charge occurred. The police officer described it as follows (the reference to “it” is a reference to Mr Nelson’s vehicle):
AIt was travelling south. It travelled into the bowl area. Did a lap of the bowl in a counter clockwise direction, did a counter clockwise donut and then drove north on Burdon Street entering amongst some people who were standing on the roadway where it continued to do its burnout [sic]. The driver then executed another donut in close proximity of people standing there, and then did a standstill donut for a few seconds before parking up [sic].
XXN
QSo how many people were there.
AAll up there would have been as I said more than 60 people. In the immediate vicinity of the vehicles, so we are talking within 10 metres, I think 20, 25 people.
QAgain did you record all of this.
AAbsolutely.
QWhat did you see the vehicle do after that.
AAfter that other police blocked off the court, and you will see on the video that the police lights – people started to scattered [sic]. That car parked up and the driver alighted.
QSo this last incident you talk about, where were the people actually standing.
APeople were standing on both footpaths and also on road surface.
QIs this depicted in the video.
AYes it is. As the vehicle drove into the crowd some of the crowd actually closed in around the car.
QDid you see the car when that happened.
AYes.
QWhat did you see the car do when the crowd closed in.
APeople standing around and the driver executed a counter clockwise donut [sic]. When I say donut he turned the wheels and caused the rear of the car to spin around laterally at high speed and after doing that he did what is called a ‘standstill donut’ where he basically just keeps the vehicle still and spinning the rear wheels [sic].
QHow close did he come to the pedestrians there.
AWithin 5 metres.
QDid any of the pedestrians move at all.
ANo.
QAfter that last manoeuvre you talk about, where did the vehicle go.
AIt went back to where it was originally parked on the western side of the court.
QWas there any smoke caused by the manoeuvres that you saw by that vehicle.
ALarge amounts.
QHow long do you say that last manoeuvre lasted for.
AFrom the point he started in front of me to when he went up, did his bit in the bowl and came back down and finished amongst the pedestrians, a little under 2 minutes.
The Magistrate’s findings make it clear that the incident the subject of the charge occupied only about 17 seconds. In the first two lines of the evidence set out above, the police officer refers to some driving that immediately preceded the driving relied upon in proof of the charge. That driving began when Mr Nelson was driving north, and did not include the driving when he was driving south, nor while he was in the bowl area. In the last two lines of the evidence the police officer again refers initially to the driving that preceded the driving relied upon, the driving relied upon having begun when Mr Nelson “came back down” and then drove to where he finished.
The Magistrate summarised what can be seen on the film as follows:
[14]At 7.12 with spectators on the road and verge between Richmond [the police officer] and the defendant’s vehicle and spectators on the opposite side of the road and north of the defendant’s vehicle, the defendant performs a fast counter clockwise turn around the front wheels with the tyres producing smoke and significant noise. The smoke partially obscures the vehicle and the area under the street light. This continues until about 7.25 when the vehicle performs a stationary burnout producing such a large amount of smoke that beyond the groups of people north of Richmond but south of the defendant’s vehicle the road is obscured by smoke from the tyres until the defendant’s vehicle moves forward and turns counter clockwise and the defendant turns the engine off. At 7.29 the spectators walk in all directions to the defendant’s vehicle.
[15]The manoeuvres performed between 7.12 and 7.29 were with spectators south, north, east and west of the vehicle with nothing between them and the defendant’s vehicle. At the outset of the trial the prosecutor said that it was this driving that prosecution relied upon to prove the offence.
The numbers in this passage refer to minutes and seconds. The driving relied upon occurred in the 17 seconds in question. What the Magistrate said accords with my observations of the film.
The Magistrate made the following findings:
[18]Having considered the evidence before me and the submission put I am satisfied beyond a reasonable doubt that the defendant’s driving of the motor vehicle as depicted between 7.12 and 7.29, placed spectators seen in the video at a real and substantial risk of harm in the event that either the defendant lost control of the vehicle or one or more of the spectators got too close. There is no doubt the defendant knew the spectators were there. I am satisfied beyond a reasonable doubt that by driving in the manner I have described the defendant knowingly created a real and substantial risk of harm to the spectators in the vicinity of his vehicle.
[19]For the charge to be established I must also be satisfied the defendant intended to cause harm or was recklessly indifferent as to whether such harm was caused …
[20]In this case, the defendant modified his vehicle to enable it to more readily produce excess tyre spin under acceleration as I have described. He was aware there were pedestrians present at about 4.38 a.m. in the morning, to witness this type of driving. He drove his vehicle in a manner shown in the video and described by me in the vicinity of those pedestrians so as to create, as I have said, a real and substantial risk of harm to them. I have no doubt that he knew this and he drove in this manner with a reckless indifference about whether his passenger or spectators were harmed. Although the incident occurred in the early hours of the morning in a location where it was unlikely the general public would be present he knowingly placed his passenger and spectators at a real and substantial risk of harm and was recklessly indifferent as to whether harm occurred.
One of the statements tendered by consent established that Mr Nelson had modified his vehicle so that the rear wheel brakes could be disengaged, enabling him to produce “tyre spin” in the manner described by the Magistrate. Mr Nelson did not give evidence.
Submissions on appeal
I accept the submission by Ms Chapman SC, for Mr Nelson on appeal, that it was necessary for the Magistrate to find that the act in question was likely to cause harm. That follows from the language of s 29(3). So much was decided by Duggan J (with whom the other members of the Court agreed) in Bedi v The Queen (1993) 61 SASR 269 at 274. The test is objective. I also accept her submission that in deciding whether the act in question was likely to cause harm to another person, the matter for consideration is whether the act creates a real or substantial risk of harm. In R v Parenzee [2008] SASC 245; (2008) 101 SASR 469, I considered s 29(1)(a) of the CLCA, and said at [73]:
[73]… When one focuses on the question of whether an act endangers life, or puts life in peril or in danger, I consider it clear that what is referred to is an act or omission that endangers life in the sense of creating a real or substantial risk to life, or an act that exposes life to a real or substantial risk. It does not make sense to speak, in this context, of whether a risk is probable, or more probable than not. Whatever meaning one gives to “likely” in isolation, I consider that an act is likely to endanger life if the act gives rise to a real or substantial risk to life or threat to life.
I consider that the same approach should be taken to s 29(3) of the CLCA.
I also accept her submission that proof of recklessness required proof that Mr Nelson was aware of a substantial risk that his conduct could result in harm.
Ms Chapman submits that the Magistrate erred in finding that the driving in question was likely to cause harm. She argues that the Magistrate’s finding depends on the possibility of Mr Nelson having lost control of his vehicle or one or more of the spectators getting too close: see the reasons at [18]. She submits that an act cannot be one likely to cause harm if that conclusion depends upon another person doing something that did not happen (that is, in the case of a spectator, getting too close), nor if it depends upon something being done by Mr Nelson which did not in fact happen (Mr Nelson miscalculating or losing control).
Ms Chapman submits that the line that she draws between events that did happen and events that might have happened but did not happen, is a line that must be strictly observed. Her submission is not that in the particular circumstances the possibility of a spectator getting too close or the possibility of Mr Nelson miscalculating or losing control was so slight or remote as to lead to the conclusion that there was not a real or substantial risk of harm. Her submission is that one cannot rely at all upon conduct that might have happened but did not happen, to establish the existence of a real or substantial risk of harm.
I agree that in deciding whether the driving in question was likely to cause harm it is a relevant consideration that the assessment of the likelihood of harm depends upon conduct that might have occurred but did not occur. That consideration might, or might not, in particular circumstances cause one to conclude that a real or substantial risk of harm is not made out. But I do not agree that one cannot have regard at all to such conduct.
Ms Chapman’s submission was based substantially on observations made by the Court of Appeal of the Supreme Court of Victoria in R v Abdul-Rasool [2008] VSCA 13; (2008) 18 VR 586.
Ms Abdul-Rasool was charged with an offence against s 22 of the Crimes Act 1958 (Vic), which provides:
A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death is guilty of an indictable offence.
In brief the facts were these. Ms Abdul-Rasool went to her daughter’s school in a distraught state. She met with the Deputy Principal in an office. An interpreter joined them. Ms Abdul-Rasool behaved in a distraught manner, pulled a can of petrol out of a plastic bag she was carrying and poured petrol over herself. She had a cigarette lighter which she put by her side. Some of the petrol splashed around her, and onto the Deputy Principal and the interpreter. Ms Abdul‑Rasool, in her distraught state, said that she was going to burn the school and to burn the others in the room. She did not do so. She was subdued without any harm being caused. On her trial under s 22 the prosecutor submitted that in her distraught state she might have lit the petrol by using the lighter that she was carrying, and by setting fire to herself, putting the others in the room in danger of death. An expert witness gave evidence identifying two other possible sources of ignition of the petrol, but on appeal the court proceeded on the basis that there was no realistic prospect of either of these sources igniting the petrol vapour. The point was taken at trial, and on appeal, that what Ms Abdul‑Rasool did did not create an appreciable risk of death to anyone. The defence argued that one could not take into account, for the purposes of the charge, the possibility of Ms Abdul-Rasool carrying out a further voluntary act (setting fire to herself) to establish the offence. The defence submission was that the voluntary act of igniting the petrol would not in any sense be a consequence of the act of pouring petrol on herself. That further act would occur only as a matter of choice, and not as a mere consequence of the first act. The Court upheld this submission, and set aside the conviction. The essence of the Court’s reasoning appears from the following short passage from the reasons of Redlich JA:
[33]The applicant’s possible further acts – reaching for her matches or lighter and proceeding to ignite herself – were neither inevitable nor contemporaneous effects of the conduct actually engaged in. That is to say, the surrounding circumstance or consequences of the act performed do not encompass such a further act by the applicant.
Or, as Chernov JA said at [1], referring to potential sources of endangerment of life:
[1]… Two of such sources were external to the applicant – the heater and the computer. On the evidence, however, there was no realistic prospect of either of those sources igniting the vapour. The third potential source was the act of the applicant striking the lighter that was in her bag. But it is common ground that she made no attempt to use it. In the circumstances, and notwithstanding that the applicant was in a highly agitated state when she made the threats to burn the school, her conduct, without more, did not create an appreciable risk of death (of the principal or anyone else in the room or the school children). In my view, the applicant’s no case submission should have been upheld by the trial judge. Hence, as I have said, I would allow the application for leave to appeal, treat the appeal as having been heard instanter and allow it, quash the conviction and order that a verdict of acquittal be entered.
In support of her submissions Ms Chapman relied upon a number of observations made by Redlich JA, with whose reasons the other two members of the Court agreed. For example, at [30] Redlich JA said:
[30]The endangerment offences are concerned with the consequences of action-that is to say with something which follows as an effect or result of something antecedent. A further voluntary act does not follow as an effect or result of an antecedent voluntary act. It is not a consequence of the act of pouring petrol on oneself that one must set oneself aflame. There is no deterministic relationship between the two acts. The second act would occur as a matter of choice and not as a consequence of the first act. To say that a person can be reckless as to a further voluntary act by them is to deny them their own free will.
Referring to the objective elements of the offence, he said at [41]:
[41]I do not think the expression ‘may place’ as a matter of principle or authority attenuates the requirement for a substantiated and real danger of death existing in the given circumstances. The endangerment to life contemplated by s 22 is real and as Ashley JA observed in R v Lam not merely a hypothetical construct. The point is also made clear in R v Anderson which supports the view that there must in fact exist a danger of death in the impugned conduct in the surrounding circumstances. The danger of death must not be contingent upon some unsubstantiated conduct that has yet to exist. The decision in Coggins v R illustrates that ‘potential’ endangerment is not established by supplementing the impugned conduct with future events, so as to invest the impugned conduct with the requisite quality of endangerment.
[42]That the real danger of death must arise from existing and not speculative circumstances is implicit in the description in Nuri of the objective intent:
The objective intent required to be established involved proof that a reasonable man in the accused’s position engaging in the very conduct in which the accused engaged would have realised that he had placed or might have placed another in danger of death.
Citations omitted
After referring to a number of cases, he said at [51]:
[51]In all these cases the conduct the subject of focus is confined to the ‘very’ act performed by the accused and the circumstances in which that act occurred. There is no advertence to hypothetical or future conduct by the accused. The offence is intended to prohibit conduct that carries with it an appreciable risk of death.

I acknowledge the force of the submission by Ms Chapman. However, in my opinion it is important to bear in mind that in this case the prosecution sought to characterise as endangering life conduct on the part of Ms Abdul-Rasool that included a further conscious or voluntary act that she did not perform, and sought to include it on the basis that she might have performed it. One can understand, in that context, the insistence by the Court that the focus had to be on what she did, and not what she might have gone on to do but did not go on to do. The offence with which she was charged required identification of the conduct relied upon, and that conduct was (in brief) the splashing of petrol on herself and her surroundings. It was one thing to point to circumstances that meant that that conduct endangered life (hence the attempt to rely upon other sources of ignition), but a quite different thing to rely upon a further conscious or voluntary act by Ms Abdul-Rasool as part of the conduct relied on. In truth, the case is quite different. The observations on which Ms Chapman relies have to be understood in that context.
Indeed, while I do not put too much weight on this, it is implicit in the reasoning of the Court that had there been a significant risk of the petrol igniting as a result of a spark from an appliance in the room, the conduct in which Ms Abdul-Rasool engaged might have been treated as conduct endangering life. If that is correct, that demonstrates that the line that Ms Chapman seeks to draw is not a rigid or definitional line, and is no more than an aspect of the circumstances to be taken into account.
For what it is worth, I add that in the present case the prosecutor did not rely upon “unsubstantiated conduct that has yet to exist”: Redlich JA at [41]. The prosecutor relied upon the circumstances in which Mr Nelson drove his vehicle. The prosecutor did not rely on “speculative circumstances”: Redlich JA at [42]. Again, while there is an element of speculation in the features relied on by the prosecutor, they were existing aspects of the circumstances in which Mr Nelson drove his vehicle.
Mr Nelson’s driving was likely to cause harm because it was a form of driving that gave rise to a real risk that due to a momentary loss of control, or a slight miscalculation, his vehicle could move suddenly and unexpectedly in an unpredictable direction. There were spectators quite close to the vehicle. Having regard to the fact that there was no barrier between the spectators and the car, and no-one preventing spectators from moving wherever they wished, there was an evident risk of a spectator moving too close to the car. This combination of circumstances means that the act was one likely to cause harm. It might be harm resulting from a miscalculation or loss of control by Mr Nelson, or simply from someone getting too close to the car.
An illustration will make my point. If I deliberately fire a shot that passes very close to the head of another, but I intend that the shot not hit the person, there is no difficulty, I consider, in saying that my act was likely to cause harm to another. The risk of the person moving the person’s head at the crucial moment, or the risk of my aim being out by a tiny amount, means that my act in deliberately shooting very close to the person’s head is an act likely to cause harm. That conclusion follows, even though the harm would result only if the person moved or my aim was not true.
I agree that the manner in which the Magistrate expressed his conclusions at [18] is, strictly, incorrect. The real and substantial risk of harm was present. It was present because of the real possibility that a spectator would get too close or possibly that Mr Nelson would miscalculate or lose control. The risk of harm was present and inherent in the circumstances in which Mr Nelson drove his vehicle, and did not arise only if and when there was a miscalculation, or loss of control, or one of the spectators got too close.
I also reject the submission that it cannot be said that it was the driving that was likely to cause harm. It is false logic to argue that the cause of the harm would be the spectator getting too close, or the loss of control of the motor vehicle. Each of these things is part of the overall circumstances.
It is irrelevant that the spectators were not in Mr Nelson’s direct path, and equally irrelevant that he did not drive at them.
The substantial risk of harm arose from the nature of the manoeuvre performed, the inherent risk of the sudden movement of the car, the proximity of the spectators and the absence of any protective barrier.
For these reasons, I agree with the conclusion by the Magistrate that the driving in which Mr Nelson engaged was to be characterised as an act likely to cause harm to another.
I would not disturb the Magistrate’s finding that Mr Nelson was aware of the risk of harm to which his driving gave rise. He knew, of course, what he was doing. It is quite clear that he must have been aware of the presence of spectators on the roadway and on the footpath either side of the roadway. He must have known that there were no barriers preventing them moving on to the roadway, and that people were moving around on and adjacent to the roadway. All of this is apparent from the film of the events.
I turn to the question of whether there was evidence to support the Magistrate’s conclusion that Mr Nelson was recklessly indifferent to the causing of harm.
A person can be recklessly indifferent to the occurrence of harm even though the person does not intend to cause the harm (that is quite clear), and even though the person would prefer that the harm did not occur and indeed wishes that it not occur. In a number of decisions dealing with the expression “reckless indifference” in different settings, courts have rejected the proposition that a person is not reckless simply because the person does not want the harm in question to occur. Desire to avoid harm is not inconsistent with recklessness.
Nevertheless, there is some force in the criticism that Ms Chapman made of the Magistrate’s finding that Mr Nelson was recklessly indifferent as to whether the risk of harm eventuated. I would support the conclusion to that effect on the basis that he was aware of the risk of harm to the spectators whom he knew to be present, and engaged in the driving in question despite that risk and his awareness of that risk. It is clear from the film that the particular driving relied upon in proof of the offence took place on a part of the road where spectators were close at hand. It is not to the point that some of them stepped onto the road as, or shortly after, the vehicle passed them. Their movement onto the roadway was one of the risks inherent in the situation.
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.