R v Allen No. Sccrm-03-113

R v ALLEN
[2003] SASC 309
Court of Criminal Appeal: Mullighan, Debelle and Gray JJ

MULLIGHAN J I would allow the appeal, set aside the verdict of guilty and order a retrial for the reasons given by Gray J.
DEBELLE J Appeal against conviction.
The appellant was convicted after trial by jury of the crime of causing death by dangerous driving contrary to s 19A(1) of the Criminal Law Consolidation Act 1935. He appeals against that conviction.
The charge arises out of a fatal accident on 1 September 2001 on the road between Mount Barker and Strathalbyn, which passes through Wistow.
Near Strathalbyn, the road proceeds down a long hill in a roughly north-south direction. As one proceeds down the hill driving south towards Strathalbyn, the road divides into three lanes with the middle lane being an overtaking lane for vehicles travelling up the hill. In the section of the road just before the crest of the hill, the road is one lane in each direction divided by an unbroken double line. At the top of the hill, going towards Strathalbyn, the road forms three lanes. The lane on the left (as one proceeds towards Strathalbyn) is marked by an unbroken white line and, immediately to its left, a broken white line. Thus, vehicles travelling down the hill are permitted to cross the line if the way ahead is clear. The two lanes on the right are divided by a broken white line.
The appellant was travelling south along the road driving towards Strathalbyn. He was driving down the hill. Just before the collision and for some time before, he had been travelling in the middle lane overtaking vehicles in the lane to his left.
Mr Baker was travelling in the opposite direction towards Mount Barker. He was in the process of overtaking a four-wheel drive Toyota vehicle driven by Mr Pfitzner. A collision occurred between the appellant’s car and Mr Baker’s car. Mr Baker was killed in the collision. The appellant was severely injured and was hospitalised for some time. He was unconscious after the accident. He has no recollection of it or of the events preceding it.
The Prosecution Case
The prosecution case was that the appellant had attempted to overtake a line of cars travelling in the same direction at a time when it was unsafe to do so. The prosecution alleged that the appellant had committed himself to an overtaking manoeuvre when either he did not have a clear view of the road ahead and did not know whether he could complete the overtaking manoeuvre safely or he had simply not checked that the middle lane ahead was clear.
The prosecution case essentially turned on the evidence of three witnesses. Two of those witnesses, Mrs Pegler and Mr Armitage, were driving towards Strathalbyn. The third witness was Mr Pfitzner, who was driving the four-wheel Toyota vehicle towards Adelaide. Mrs Pegler’s evidence was that, as she was driving down the hill to Strathalbyn at about 80-90 kilometres per hour, she had a line of cars behind her. In her rear view mirror she saw the appellant overtaking in the middle lane. When she first saw the appellant’s car, she had not seen cars travelling in the opposite direction. A little later, she saw two cars travelling in the opposite direction, one overtaking the other. The overtaking vehicle was Mr Baker’s car. The collision occurred shortly after.
Mr Armitage was driving a car towing a trailer with a boat on it. He was travelling behind Mrs Pegler’s car. As he was proceeding down the hill he saw two cars travelling in the opposite direction, one in the middle lane in the process of passing the other. Some five to eight seconds later he was passed by the appellant’s car. He could see that a collision was likely to occur and took evasive action. The vehicles collided very shortly after.
Mr Pfitzner was driving his Toyota towards Adelaide. He saw a line of six or seven vehicles travelling in the opposite direction towards him. One of those vehicles was towing a trailer and boat. He saw a car in the middle lane on the skyline at the top of the hill. The vehicle was at the rear of the line of vehicles and was in the process of overtaking them. Within a short time after, he saw a puff of smoke from the tyres of that vehicle. This was, of course, the appellant’s vehicle. He believed that the appellant’s vehicle was out of control with its brakes locked. Mr Pfitzner took evasive action and pulled to the side of the road. About two to three seconds later he was passed by Mr Baker’s vehicle. He saw the collision occur. The point of impact was in the left hand lane as one drives from Strathalbyn to Mount Barker, that is to say, in the western most lane.
The accident occurred at about 4.30pm. It was then a clear dry day. Visibility was good. The bitumen road surface was dry. At this point, the speed limit is 110 kilometres per hour.
Blood was taken from both Mr Baker and the appellant. Mr Baker had a reading of 0.289 per cent alcohol in his blood. The forensic evidence was that Mr Baker’s blood alcohol reading would have been lower at the time of the collision but no lower than 0.19 per cent. The blood taken from the appellant denatured and was not suitable for testing. The prosecution called a witness who had been working with the appellant that day who said that the appellant had not drunk any alcohol.
The Defence Case
As already mentioned, as a result of the injuries he sustained, the appellant had no recollection of the collision or events for some time before. The defence case was that the appellant’s driving was not the substantial cause of the accident. It was contended that Mr Baker was so grossly affected by alcohol that he had decided to overtake Mr Pfitzner’s vehicle when it was unsafe to do so or that he failed either to see the appellant’s vehicle or to take proper evasive action.
The Grounds of Appeal
There are four grounds of appeal. The first two arise out of the direction given by the trial judge. The first is that the trial judge erred when directing the jury as to the essential elements of the offence of causing death by dangerous driving and as to the alternative verdicts available. The second is that the judge removed the issue from the jury by expressing his view as to the nature of the driving of the appellant. It is convenient to deal with both grounds together.
At a very early stage in his direction, the trial judge identified the task for the jury in a way which did not include all the elements of the offence. There are three essential elements, namely, that the accused drove a motor vehicle, that the accused drove in a manner that was dangerous to the public, and that the dangerous driving was the substantial cause of death. The trial judge said:
“ If when you retire – and you will make certain findings on the factual matters – ‘I have no doubt about this manner of driving and it was driving in a manner dangerous to the public’, you are then obliged to convict. But on the other hand, if you had some reservations about that because of the nature of the evidence and comments put to you on that evidence, of course then you would be obliged to acquit.”
That direction focussed on the manner of driving and omitted the question of causation. It also failed to alert the jury to the possible alternative verdicts, although the trial judge did mention them later at the close of his direction in very brief and not particularly helpful terms.
A little later the trial judge correctly identified the three elements of the offence but, again, focussed on the manner of driving to the exclusion of the question of causation. The judge then turned to direct the jury upon the question of what constitutes dangerous driving. He gave an example which was very close to the facts before the jury. He said:
“For instance, if a person is going up a hill, in a line of traffic, and a person overtakes a large line of traffic, not knowing what is coming over the crest, at speed, well, that is the case that you would say ‘That is creating an unnecessary risk to other persons using the road and that is driving in a manner dangerous to the public’, and as I say, that has to be looked at in all cases on the evidence that was put before you, when you say ‘Did this driving create that unnecessary, that unfair risk?’ and if you as ordinary people say it did, even the driver carrying out that manoeuvre could appreciate that that driving did create that risk, that is driving in a manner dangerous to the public.”
Although there are differences between the example and the circumstances of the collision, the fault lies in the fact that it is grounded on a factual premise which the jury might infer expressed the judge’s view of the facts in the case before them.
The judge proceeded to remind the jury of the main points in the evidence and noted the points made by counsel in their respective addresses. He summarised the Crown case and added a comment. He said:
“… What the Crown has said simply, he pulled out at a time to pass a line of cars and there were certainly Mrs Pegler, Mr Armitage and the boat, and there he look out at that point of time, he pulled out at the top of the hill, that was the time he shouldn’t, he pulled out back at the top of the hill, he had no view, he shouldn’t, and clearly as he went on he did not observe the Commodore until very late in his driving when the accident was inevitable.
So the key issue is really his driving and that has created a risk which I say is out of the ordinary, and consequently you should convict him of this charge of driving in a manner dangerous to the public.”
The second of those paragraphs might well have recalled to the jurors’ minds the example of dangerous driving provided by the judge. More importantly, the remarks in that paragraph effectively removed the issue of dangerous driving from the jury.
When the jury returned, counsel for both the prosecution and the defence drew the attention of the trial judge to a number of errors in the direction. It is unnecessary to list them all. Of particular note were the fact that counsel were concerned with the direction and its reference to alternative verdicts. The trial judge was referred by the prosecutor to a model direction expressed in The Queen v Kamleh (1990) 159 LSJS 268, a copy of which was handed to the judge. Both counsel also referred to the absence of a direction on causation and expressed concern as to the manner in which the judge had expressed an opinion on the question of the appellant’s driving.
The judge recalled the jury and redirected them. However, there were some errors of fact and the judge again recalled the jury and corrected the questions of fact. The jury retired before lunch. Shortly after lunch, the jury asked for assistance on the alternative verdicts.
The directions for the jury were not helpful and may well have caused confusion. Although the first redirection corrected a number of errors, it did not give a clear direction on the alternative verdicts, a fact highlighted by the jury’s later question.
In my view, the manner in which the trial judge expressed his views as to the nature and manner of the appellant’s driving withdrew the issue from the jury. Although a judge is entitled to express his own views as to the facts of the case, he must nevertheless make it equally clear that it is for the jury to determine the issue: Cunningham v Ryan (1919) 27 CLR 294 at 298 – 299; Barca v The Queen (1975) 133 CLR 82 at 105. However, the judge must not express his views with such vigour that he either effectively withdraws the issue from the jury or overawes the jury by the strength of the language used: B v The Queen (1992) 175 CLR 599 per Brennan J at 605 – 606, where His Honour expressed the principle in these terms:
“ A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury. It must exhibit a judicial balance so that the jury is not deprived ‘of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence’. I agree with the observations of the Full Court of the Supreme Court of South Australia in Reg. v. Hulse:
‘[T]o use the words of the Privy Council in Broadhurst’s Case, there is a danger of the jury being overawed by the judge’s views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge’s views.’ ” [Footnotes omitted.]
In the instant case, the judge expressed an unequivocal view, not only that the appellant’s driving was dangerous but that the jury should convict the appellant. In no respect did he qualify that view or suggest that it was for the jury to decide. The issue of causation was not put to the jury at the time. Although the trial judge referred to alternative verdicts, he did so in such brief terms that the jury would have had little doubt as to the trial judge’s view.
It is doubtful whether this impression could have been corrected by the subsequent redirection. For these reasons, the trial miscarried to such an extent that there is no alternative but to allow the appeal.
A Fit Case for the Proviso?
Ms Davidson, who appeared for the Director of Public Prosecutions, submitted that the prosecution case was so strong that the court should act in accordance with the proviso to s 353(1) of the Criminal Law Consolidation Act and dismiss the appeal on the ground that there had been no miscarriage of justice. The prosecution case was certainly strong but I do not believe the appeal should be dismissed. There were a number of questions of fact for the jury to determine. The issues turned on a number of facts. There was a real question whether Mr Baker or the appellant was first to enter the middle overtaking lane. There were other questions as to when the appellant pulled out, the extent of his view ahead, whether he could see the road ahead at the time when he pulled out, whether Mr Baker was already in the overtaking lane when the appellant pulled out, and whether Mr Baker had overtaken Mr Pfitzner at a time when the appellant was already proceeding down the hill in the middle lane. In these circumstances, it would be quite inappropriate to apply the proviso.
That is sufficient to dispose of the appeal. However, given that there is to be a retrial, it is appropriate to deal with a further matter concerning some evidence which the trial judge refused to admit.
The Excluded Evidence
Mr Edwardson, who was counsel for the defendant both at the trial and on this appeal, had applied at the trial for a ruling that the prosecution should present two witnesses for cross-examination, Mr P J Hackworth and Ms D J Riley. These two persons had seen Mr Baker driving along the Strathalbyn to Mount Barker Road but a few minutes before the accident.
Mr Hackworth had been driving along the road shortly after leaving Strathalbyn and heading towards Mount Barker. He was driving in an 80kph zone. He saw a vehicle overtaking him at a fast rate of speed. It was a white Commodore. At the time, there was a single unbroken line in the middle of the road, indicating that it was unwise to pass. The Commodore overtook Mr Hackworth’s car without slowing. Nevertheless, it was a safe manoeuvre as there was no vehicle approaching in the opposite direction. A few minutes later, Mr Hackworth saw the white Commodore after the collision.
Ms Riley was driving along the same road, also heading towards Mount Barker. Ms Riley was in a 100kph zone. She was driving at about 90kph. She was driving in front of a vehicle towing a trailer. She saw in her rear view mirror a white Commodore overtaking both the vehicle and trailer and her own vehicle. She thought that the white Commodore was travelling too fast. She estimated its speed at not less than 130kph. The Commodore then passed her and went out of sight. A few minutes later she came to the scene of the accident and saw that the Commodore had been involved in it.
Mr Edwardson submitted to the trial judge that the evidence was relevant to prove that Mr Baker was driving fast and that his overtaking as described by Mr Hackworth was consistent with the risk taking that Mr Hackworth described. He suggested it was indicative of the manner in which Mr Baker was driving whilst intoxicated. The prosecution was willing to call the witnesses provided that calling them would not constitute a breach of s 18 of the Evidence Act, 1929. The particular breach was not identified but it appears to be s 18(2) which provides that a defendant forfeits the protection of being asked about previous convictions or is of bad character if the conduct of the defence involves imputations as to the character of a witness or, among other things, a witness for the prosecution and the imputations are not such as would necessarily arise from a proper presentation of the defence. There can be no doubt that the leading of such evidence could not infringe s 18(2).
The trial judge refused the application. He did not address the issues in s 18 but refused it on other grounds. He said:
“ The inference here, as put by Mr Edwardson, is that there is a propensity for high speed by this driver.
In my view, there are real risks in putting that material before the jury and the inferences that can be drawn. I do not believe there is a nexus as suggested by the defence.
My view is that the Crown are not obliged to put this evidence or indeed make the witnesses available for cross-examination as, indeed, there are too many risks and inferences which could be drawn by the jury in an incorrect manner and I so rule.”
With respect, the trial judge did not completely understand the reason why Mr Edwardson sought to lead the evidence. It might not have been entirely the fault of the trial judge. I also respectfully disagree with the trial judge’s reasons for excluding the evidence. The evidence sought to be led was not evidence of Mr Baker’s driving on other occasions but was evidence of his course of driving on the afternoon of 1 September but a few minutes before the collision occurred. The evidence was relevant as a piece of circumstantial evidence as to the manner and speed of his driving very shortly before circumstances where there was no apparent interruption of that journey. Mr Baker had a high blood alcohol reading. He had not stopped in the course of his journey from Strathalbyn to the point where the collision had occurred. There was, therefore, an obvious connection between his driving a few minutes before and his driving at the time of the collision: R v Buchanan [1966] VR 9 at 12 and 15 – 16. In my view, the evidence was clearly admissible.
For all of these reasons, I would allow the appeal and order a new trial.
GRAY J: This is an appeal against conviction.
The appellant Roland David Allen was charged with causing death by dangerous driving[1]. On 10 April 2003 he was convicted by jury verdict following a trial in the District Court.
[1] Statement of Offence
Background Circumstances
At about 4.45pm on 1 September 2001 the appellant was driving a motor vehicle south on Adelaide Road towards Strathalbyn. At the same time Mr Baker the deceased was also driving on Adelaide Road. He was travelling north towards Mt Barker in the opposite direction to the appellant. The vehicles collided head on at or about the mid point of a three lane overtaking section of the road. Mr Baker died at the scene.
Adelaide Road is generally a two laned road with one lane for each direction of travel. However, as earlier observed, the collision occurred on a three laned section of the road. The three laned section provided an overtaking lane. In these reasons the middle of the three lanes is referred to as the overtaking lane. The three laned section of road continued for a distance of approximately 700 metres. Adelaide Road had a sealed bitumen surface.

As Mr Baker drove north he passed a sign which indicated that there was an “Overtaking Lane Ahead”. He then entered the three laned section. A further sign indicated “Keep Left Unless Overtaking”. For Mr Baker’s direction of travel the lane to the left and the overtaking lane was divided by a broken white line. The overtaking lane was separated from the right hand lane by a continuous unbroken white line and then a broken white line. These road markings indicted that Mr Baker was not to cross into the right hand lane. For Mr Baker’s direction of travel the three lane overtaking section traversed a bend to the left and then a rise to the crest of a hill. At the crest the road reverted to two lanes. Continuous double white lines then divided the two lanes.
As the appellant drove south and approached the crest of the hill the road for his direction of travel was marked with continuous double white lines. As he cleared the crest the two lanes became three. Road markings between the lane to the left and the overtaking lane comprised the earlier referred to broken white line with a continuous unbroken white line alongside. These road markings indicated that the appellant was entitled to cross into the overtaking lane to overtake. There were no road signs indicating “Overtaking Lane Ahead” or “Keep Left Unless Overtaking” for south bound traffic. For the appellant’s direction of travel the three lane overtaking section proceeded down hill with a bend to the right.
The Australian Road Rules[2]
[2] Australian Road Rules. Rules under the Road Traffic Act 1961 (SA)
The Australian Road Rules were enacted as a co-operative scheme between the States to create uniform road rules for use throughout Australia. The rules regulate the conduct of overtaking drivers. They relevantly provide:
Rule 130    Keeping to the left on a multi-lane road
(1)     This rule applies to a driver driving on a multi-lane road if:
(a)     the speed-limit applying to the driver for the length of road where the driver is driving is over 80 kilometres per hour; or
(b)     a keep left unless overtaking sign applies to the length of road where the driver is driving.
…
(2)    The driver must not drive in the right lane unless:
(a)     the driver is turning right, or making a U–turn from the centre of the road, and is giving a right change of direction signal; or
(b)     the driver is overtaking; or
(c)     a left lane must turn left sign or left traffic lane arrows apply to any other lane and the driver is not turning left; or
(d)     the driver is required to drive in the right lane under rule 159; or
        (e)     the driver is avoiding an obstruction; or
        (f)    the traffic in each other lane is congested; or
        (g)     the traffic in every lane is congested.
Rule 131    Keeping to the left of oncoming vehicles
A driver must drive to the left of any oncoming vehicle unless:
        (a)     the driver is turning right at an intersection; and
(b)     the driver is passing an oncoming vehicle turning right at the intersection; and
(c)     there is no traffic sign or road marking indicating that the driver must pass to the left of the oncoming vehicle.
…
Rule 134    Exceptions to keeping to the left of a dividing line
(1)     This rule applies to a driver on a road with a dividing line.
(2)If the dividing line is a broken dividing line only, or a broken dividing line to the left of a single continuous dividing line, the driver may drive to the right of the dividing line to overtake another driver.
Note 2   A driver must not overtake another driver unless the driver has a clear view of any approaching traffic, and it is safe to overtake the other driver - see rule 140.
(3)If the dividing line is not 2 parallel continuous dividing lines, the driver may drive to the right of the dividing line:
(a)     to enter or leave the road; or
(b)     to enter a part of the road of one kind from a part of the road of another kind (for example, moving to or from a service road or emergency stopping lane).
…
Rule 140    No overtaking unless safe to do so
        A driver must not overtake a vehicle unless:
        (a)     the driver has a clear view of any approaching traffic; and
        (b)     the driver can safely overtake the vehicle.
…
Note 2   A driver is not permitted to overtake another vehicle by crossing a single continuous dividing line only, a single continuous dividing line to the left of a broken dividing line or 2 parallel continuous dividing lines - see rules 134 (2) and 132 (2).
Mr Baker was obliged to drive in the left lane unless overtaking. He was not permitted to overtake unless it was safe to do so. The appellant was under the same obligations. An important factual issue for determination at trial was which vehicle entered the overtaking lane first.
The Overtaking Manoeuvres
As a result of injuries sustained in the collision the appellant had no memory of the lead up to the collision or impact. As earlier observed Mr Baker died at the scene. Although a number of motorists witnessed the events, no one recalled the point at which either vehicle entered the overtaking lane.
At some unidentified point the appellant’s vehicle entered the overtaking lane. Whilst travelling in that lane the appellant overtook a number of vehicles including a vehicle towing a boat. The driver of the vehicle leading the line of vehicles overtaken by the appellant gave the following account:
Q.When you first saw [the appellant’s] car in the overtaking lane heading in the same direction as yourself, how far behind you was this car.
A.A fair way.
Q.When you say ‘a fair way’ are you able to tell us how far in terms of distance.
A.I’m no good at metric distance, but probably about six car lengths.
Q.About six car lengths behind you.
A.Yes, at least.
Q.When you first saw [the appellant’s] vehicle, are you able to tell us where the vehicle was in terms of the top of the hill.
A.In the right-hand lane in the overtaking lane.
Q.Had the car begun to come down the hill when you first saw it.
A.I can’t say.
HIS HONOUR
Q.Sorry, you can’t say.
A.Yes, he would have – sorry.
XN
Q.Are you able to tell us how far the car was from the top of the hill when you first saw it.
A.No.
Q.At the time that you first saw this car in your rear view mirror, did you have a view of the road ahead of you.
A.Yes, I did.
Q.At the time that you first saw the car in your rear view mirror, could you see any motor vehicles travelling in the opposite direction to yourself.
A.No.
Q.At any stage while were you going down the hill, did you see any car or cars travelling in the opposite direction to yourself.
A.Yes, I did.
Q.How many cars did you see.
A.Two.
Q.When did you see those two cars in respect to when you first saw the car in your rear view mirror which was apparently overtaking the line of traffic that you were in.
A.It was after some – a little while after.
Q.A little while after you saw [the appellant’s] car in your rear view mirror.
A.Yes.
Q.When you say ‘a little while’, are you able to say how long.
A.No.
Q.When you saw the two cars coming in the opposite direction, where were they in respect to the three lanes on the roadway.
A.It had gone into double lanes down at the bottom of the hill and [Mr Baker’s] car was overtaking another car on its left, [Mr Baker’s] car was in the centre lane.
Q.Lane closest to you.
A.Yes, it was.
Q.Was there another vehicle in the lane furthest from you and coming towards you.
A.Yes, there was.
Q.When you first saw these two cars – [Mr Baker’s] car and the other car further from you – were you able to form a view of their respective positions; whether they were travelling alongside one another, or one vehicle was in front of the other.
A.I think one vehicle was overtaking the other.
Q.When you say ‘One was overtaking the other’, was one vehicle closer to you than the other.
A.Yes.
Q.Which vehicle was closer to you.
A.[Mr Baker’s] vehicle.
Q.Had [Mr Baker’s] vehicle got in front of the other car.
A.I can’t say for sure.
This evidence, if accepted by a jury, would suggest that the appellant’s vehicle was in the overtaking lane for some time before Mr Baker commenced his overtaking manoeuvre.
The Crown accepted that Mr Baker’s vehicle moved into the overtaking lane to overtake another vehicle. The driver of that vehicle provided the following account:
Q.    Where was [Mr Baker’s] vehicle, in respect to your vehicle, when you first saw it.
A.    Alongside.
Q.    Directly alongside you.
A.    Yes.
Q.Had you already seen the [appellant’s vehicle] coming down the hill in the middle lane by the time you saw [Mr Baker’s] vehicle.
A.Yes.
Q.For how long had you seen [the appellant’s vehicle] coming in the opposite direction by the time you first saw [Mr Baker’s vehicle].
A.Probably two to three seconds.
Q.Had you already seen the smoke or puff of smoke from the tyres by the time you first saw [Mr Baker’s] vehicle alongside you.
A.Yes.
Q.After you saw [Mr Baker’s] vehicle alongside you for the first time, tell us what happened.
A.[Mr Baker’s] vehicle impacted with [the appellant’s] vehicle in the centre lane, about a short distance, maybe 20 metres, 30 metres in front of me. One of the vehicles, I can’t recollect which, ricocheted across the road directly in front of me and at which point I was in the final stages of braking and stopping the vehicle approximately 30 feet short of the impact point.
Q.After [Mr Baker’s] vehicle was seen by you for the first time, did you see it collide with [the appellant’s] vehicle coming in the opposite direction.
A.Yes.
Q.How long after you’d first seen [Mr Baker’s] vehicle, did you see it collide with [the appellant’s] vehicle.
A.A split second.
This account, if accepted by a jury, would also suggest that the appellant’s vehicle was in the overtaking lane before Mr Baker’s vehicle entered that lane.
The Deceased’s Blood Alcohol Reading
Mr Baker’s blood alcohol reading was 0.289g/10mL. His blood sample was taken during the post mortem and may have disclosed a reading that was higher than that in existence at the time of the collision. However Dr Ross James a forensic pathologist was of the view that at the time of the collision Mr Baker was “grossly intoxicated”. Dr James gave evidence of the general effect of intoxication on a person’s driving ability. He was of the view that Mr Baker’s driving skills at the time of the collision would have been “grossly impaired”. Mr Baker’s alcohol reading was at a level where stupefaction may arise or he was at risk of lapsing into a coma.
The Crown Case
The Crown submitted that the evidence in its entirety established that the appellant’s conduct amounted to driving in a manner that was dangerous to the public. The Crown contended that the appellant:
-      pulled out too soon without checking that the road ahead was sufficiently clear for him to be able to execute the passing manoeuvre to which he was committed;
-      failed to allow himself an opportunity to slow down and pull back to his left if something went wrong;
-      sought to overtake a line of traffic that was too long given the space and time available to execute the manoeuvre;
-      did not look at all, or looked insufficiently before committing himself to the overtaking lane coming down the hill,
-      drove at an excessive speed in the circumstances.
It was the Crown case that despite Mr Baker’s gross intoxication and his manner of driving the appellant drove in a manner dangerous to the public. His conduct was a substantial cause of Mr Baker’s death.
The Defence Case
It was the defence case that Mr Baker’s conduct was the cause of the collision. The appellant’s conduct was not a substantial cause of either the collision or Mr Baker’s death. The appellant was driving in accordance with the Australian Road Rules. Counsel for the appellant submitted that at the time the appellant moved into the overtaking lane it was safe to do so. When Mr Baker moved into the overtaking lane the appellant could not move his vehicle to avoid a collision because there was another vehicle immediately to his left. He braked heavily and moved his vehicle to the right. It was suggested that approximately 80 metres of skid marks left by the appellant’s vehicle indicated that he had acted immediately on being confronted with an emergency. He did all that could be expected of him.
Counsel for the appellant said that Mr Baker created the situation of danger and took no steps to avoid the collision. Mr Baker’s conduct arose from his gross intoxication. It was the conduct of a driver stupefied by alcohol.
Counsel for the appellant submitted that there was a reasonable possibility that at the time the appellant moved his vehicle into the overtaking lane to overtake the vehicles in front of him it was safe to do so. Mr Baker moved his vehicle into the overtaking lane when it was unsafe to do so. This reasonable possibility had not been excluded by the Crown.
General Observations
Driving in a Manner Dangerous to the Public
In McBride v The Queen[3] Barwick CJ emphasised the need for a trial judge to adequately explain to a jury in cases involving causing death by dangerous driving the manner of dangerous driving and how to distinguish that driving from other forms of unlawful driving:
These distinctions make it imperative that the jury be specifically directed as to the criteria to be applied and the distinctions to be observed in determining whether any particular speed or manner of driving can have the quality, intrinsic or occasional, of being dangerous to the public within the meaning of the section: and that the particular features of the driving charged as in breach of the section be isolated for the jury and related to these criteria.[4]
…. where it is the manner of the driving, an expression which can cover a wide and diverse set of facts, it is not enough that the vehicle as driven by the appellant has caused the death or injury and the accused was negligent, even in some glaring respect. It is essential to define what is charged as the manner of driving, so that when that has been found, the two succeeding questions can be dealt with, namely, was that manner of driving in itself or in its circumstances dangerous to the public and, did the impact which caused the death or injury occur whilst the vehicle was being so driven. Of all of these matters the jury are to be satisfied beyond all reasonable doubt.[5]
Barwick CJ further discussed what was meant by driving in a manner dangerous to the public:
Naturally the first matter in the case of charge that the vehicle has been driven in a manner which is dangerous to the public is to determine and present to the jury what precisely is the manner of driving which the Crown alleges the accused has pursued and which it claims is dangerous to the public. If that manner of driving is not by its very description potentially dangerous to the public, it would be necessary to isolate for the jury the features of it which the Crown charges to be so dangerous.
This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realised by the accused or not, which makes it dangerous to the public within the meaning of the section.[6]
[3] McBride v The Queen (1966) 115 CLR 44
[4] McBride as per Barwick CJ at 50
[5] McBride as per Barwick CJ at 51
[6] McBride at 49-50
In The Queen v Kamleh[7] the appellant was found guilty of causing death and bodily harm by dangerous driving. On appeal it was accepted that the trial judge had failed to adequately direct the jury about the meaning of “dangerous driving” and the test for establishing whether particular driving constituted driving in a manner dangerous the public.[8] King CJ observed:
[7] The Queen v Kamleh (1990-1991) 159 LSJS 268
[8] Kamleh at 270
[Dangerous Driving] involves a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public. Ordinary risks of the road include those arising from the sort of faulty driving and lack of care which must be expected, due to human frailty, from time to time, from the ordinary driver.[9]
His Honour drew attention to the need for a trial judge to outline the meaning of negligence:
If the driving, although negligent, does not go beyond what might fairly be regarded as an ordinary risk of the road, a crime of causing death or bodily injury by dangerous driving is not committed but the driver is guilty of driving without due care or attention contrary to section 45 of the Road Traffic Act.[10]
White J addressed the question of how a jury was to determine whether the driving was dangerous or merely driving without due care:
The answer lies in the jury’s judgement of the gravity of the departure from acceptable standards of driving. There are some forms of driving which are so inherently dangerous in themselves that the very undertaking of them is the most cogent proof that any reasonable person in the situation of the driver ought to have realised the danger.[11]
The court also held that dangerous driving does not necessarily occur every time a horrific result is produced. Mohr J explained:
Many situations falling far short of driving in a manner dangerous to the public can produce situations of great danger and horrific results.[12]
[9] Kamleh at 269
[10] Kamleh at 270
[11] Kamleh at 278
[12] Kamleh at 278
In R v Leaf-Milham White J addressed the issue of causation and observed:
The test is objective. It does not matter whether the accused subjectively realised whether or not his driving was dangerous to the public. Nor does it matter whether the accused intended to cause the death. Obviously he did not so intend. If the dangerous driving (objectively established) was a substantial cause of the death (objectively established), the prosecution case on those two elements is proved. It is not necessary for the Crown to prove that the dangerous driving was the sole cause of the collision leading to death. It is sufficient if the Crown proves that the dangerous driving was a substantial cause: see R v Mayne (1975) 11 SASR 583 at 589, where Bray CJ said:
‘It is now settled that it is enough if the dangerous driving of the accused is a substantial cause of the death complained of: R v Gould ([1964] 1 WLR 145; [1963] 2 A11 ER 847n. Indeed the Court of Appeal in England has said recently that it is enough if it is a cause and more than de minimis: R v Hennigan [1971] 3 A11 ER 133; 55 Cr App R 262. To ask a jury to decide whether the dangerous driving caused the death is, as I see it, more favourable to the accused than to ask them if it is a substantial cause of the death.’[13]
[13] (1987-88) 47 SASR 499 at 503
These remarks are apposite to the consideration of the issues arising in the present case.
Complaints on Appeal
Counsel for the appellant submitted that the trial judge made numerous errors. Although the judge made corrections at the request of both counsel it was said that the summing up remained deficient.

Counsel for the appellant complained that the trial judge failed to adequately identify or outline the defence case, misdirected the jury on the issue of causation and in substance withdrew that issue from the jury, failed to adequately distinguish between dangerous driving and driving without due care and provided an example of dangerous driving which have the effect of withdrawing that issue from the jury’s consideration. It was submitted that the judge’s repeated attempts to correct the errors in the summing up would have left confusion in the minds of the jury. There was a material risk that a miscarriage of justice had occurred.
Counsel for the Crown acknowledged that there were deficiencies in the summing up. It was accepted that the defence case had not been clearly put to the jury and that the example of dangerous driving given by the judge had a tendency to withdraw that issue from the jury. However it was contended that the deficiencies had largely been addressed by the judge’s further directions. The thrust of the Crown submission was that on any view of the evidence the appellant’s conduct amounted to dangerous driving. The appellant’s driving was a substantial cause of the collision and Mr Baker’s death. The Crown submitted that the court should apply the proviso and dismiss the appeal.
Consideration of the Issues
The Failure to Put the Defence Case
As described earlier in these reasons the defence case was not adequately identified or outlined by the judge. The judge did not leave for the jury’s consideration the question of whether it was a reasonable possibility that the appellant had moved his vehicle into the overtaking lane at a time when it was safe to do so. Further the question whether it was a reasonable possibility that the appellant was confronted with Mr Baker’s vehicle at a time when the appellant could not move his vehicle to the left because of the presence of another vehicle was not left to the jury.
At no time was the jury directed about the relevant provisions of the Australian Road Rules. Although the Crown did not suggest that the appellant had specifically disobeyed any law relating to the use of the overtaking lane, in the circumstances the jury should have been alerted to the effect of the relevant rules. The judge should have directed the jury about the circumstances in which the two drivers were entitled to make use of the overtaking lane and the obligations they faced. Had the jury had been directed in this way then they may have concluded that the appellant was lawfully driving in the overtaking lane, was not driving dangerously and that his conduct was not a substantial cause of the collision or Mr Baker’s death. At the very least the jury may have concluded that these events were a reasonable possibility.
It was for the Crown to establish guilt beyond reasonable doubt. The Crown carried the onus of excluding all reasonable hypotheses consistent with innocence. The judge’s failure to adequately put the defence case left a risk that a miscarriage of justice had occurred.
The Example of Dangerous Driving
By providing the jury with the following “example” the judge compounded his failure to put the defence case:
If a person drives and, indeed, creates that risk which is beyond the ordinary and necessary risk that we would anticipate when driving our car, it goes beyond that. It is really creating a risk which is certainly unnecessary and not fair; bad driving. That simply then is driving in a manner dangerous to the public. I won’t give you an example. But you may well have seen examples of such driving when you think ‘That driving really was very bad driving; that driving is creating a very unnecessary and unfair risk to other persons using the road’. For instance, if a person is going up a hill, in a line of traffic, and a person overtakes a large line of traffic, not knowing what is coming over the crest, at speed, well, that is the case that you would say ‘That is creating an unnecessary risk to other persons using the road and that is driving in a manner dangerous to the public’, and as I say, that has to be looked at in all cases on the evidence that was put before you, when you say ‘Did this driving create that unnecessary, that unfair risk?’ and if you as ordinary people say it did, even the driver carrying out that manoeuvre could appreciate that that driving did create that risk, that is driving in a manner dangerous to the public.
Counsel for the Crown accepted that this was an inappropriate example to have used. It was acknowledged that the judge had identified a set of circumstances that the jury might have considered had been established. It was accepted that the judge directed the jury that those circumstances amounted to dangerous driving. The question of whether the driving in this case amounted to dangerous driving was an issue for the jury to carefully consider and determine. Their consideration should not have been influenced by the example provided by the judge. This misdirection created the risk of a miscarriage of justice.
Withdrawing the Issue of Dangerous Driving
When summing up the judge said:
You have heard counsel’s addresses this morning. You have heard what has been put to you by the Crown in that really you should accept the evidence, or sufficient of it, of those three people, to say really the driving of this accused was really driving in what we call, what I categorise, as driving in a manner dangerous to the public. It created a risk which was a risk out of the ordinary risk that we accept when driving on the road. What the Crown has said simply, he pulled out at a time to pass a line of cars and there were certainly Mrs Pegler, Mr Armitage and the boat, and there he look out at that point of time, he pulled out at the top of the hill, that was the time he shouldn’t, he pulled out back at the top of the hill, he had no view, he shouldn’t, and clearly as he went on he did not observe [Mr Baker’s vehicle] until very late in his driving when the accident was inevitable.
So the key issue is really his driving and that has created a risk which I say is out of the ordinary, and consequently you should convict him of this charge of driving in a manner dangerous to the public.
Counsel for the appellant submitted that the use of the phrases “I categorise” and “which I say is out of the ordinary” created a risk that the jury would understand the judge to be directing them that the conduct described by the Crown witnesses amounted to dangerous driving. Counsel for the Crown accepted that the choice of words was unfortunate but submitted that the jury would have understood the judge to be referring to the Crown case generally. The difficulty with this submission is that the jury may not have understood the direction in this way. The judge was obliged to direct the jury that the question of whether the appellant’s driving was dangerous was a question of fact for them to decide.
The judge’s wording created a material risk that the jury would understand that they were obliged to conclude that the appellant’s driving amounted to driving in a manner that was dangerous to the public.
Withdrawing the Issue of Causation
During the course of the summing up the judge said:
If when you retire – and you will make certain findings on the factual matters – ‘I have no doubt about this matter of driving and it was driving in a manner dangerous to the public’, you are then obliged to convict. But on the other hand, if you had some reservations about that because of the nature of the evidence and comments put to you on that evidence, of course then you would be obliged to acquit.
As I say, it is the Crown that are obliged to prove to your satisfaction their case to that high standard. An accused person doesn’t have to, and has no obligation in these trials at all, although the accused has given brief evidence here, which I will comment on in a minute.
Cases like this are most tragic, they really are, and in many senses we all have great problems with cases like this because of what has occurred. I’ve got no doubt Mr Allen on that day at Nairne, when he was working on his farm with Mr Truran and then went off to Strathalbyn, he didn’t intend what occurred and consequently he will be suffering, as we heard in his brief evidence, from his rather horrific injuries and his ongoing depression the results of this for the remainder of his life and we are all sympathetic but we have to really put that to one side. We simply have to look at this case in a very impartial and a very, almost, dispassionate manner. The question is, really, the driving, not the consequences of either to the unfortunate Mr Baker or, indeed, the accused, but we simply have to look at the driving and then classify it in what way you then so find.
Later the Judge identified the third element of the offence as the issue of causation:
I would think, it is up to you, but you may not have too much difficulty about that third element. So very much we are here with this element: was his driving this day driving in a manner dangerous to the public?
Counsel for the appellant submitted that these portions of the summing up amounted to a direction to the jury that causation was not an important issue for their consideration.
Despite the judge’s later direction about causation there remained a material risk that the jury were left with the impression that they did not have to give serious consideration to that issue.
The Judge’s Corrections
At the conclusion of the summing up both counsel submitted that errors had been made. The judge provided an addendum to the summing up in which he made references to his earlier mistakes. Examples include:
I apologise, I may have misled you so I will correct that now.
…
When I was talking very briefly in summary at the start of my comments to you, in that summary I may have made some mistakes. For instance, I said at one stage that bad driving is driving in a manner dangerous to the public or simply that. This is wrong because there may be some bad driving which is not so categorised or it may be driving without due care or, for some reason, it may not create an offence at all. Just ignore that.
I want to tell you that a comment was made about something I said and you may infer that it was my view that the driving here of this accused amounted to driving in a manner dangerous to the public. I don’t want to give you that impression at all. That’s your decision. That’s not mine so if you, in any way, infer that, from something I said, I withdraw it.
What I have said to you about driving in a manner dangerous is probably best summed up and if you could put it to one side, my general discussions, and I think I will put it to you in this way…
Following the further summing up both counsel drew to the judge’s attention aspects of the addendum that were said to contain deficiencies. Specific attention was drawn to counsel’s earlier submission concerning the observations of King CJ in Kamleh. The judge then provided a second addendum:
You may well have cause to complain. There is one matter that I was quite wrong in my summing up to you when discussing the three divers and made some reference about application of brakes and it may be inferred that all three had seen the braking. That was quite wrong, really, because Mrs Pegler didn’t see any brakes. The only person that saw the braking, of course, was Mr Armitage and not the other two so I apologise for misleading you there.
It has been mentioned to me that after I read that passage out, perhaps it would be preferable to go further as, in that case, the learned judge went on to talk about the ordinary risks of the road, that is, the due care aspect and he said: ‘Ordinary risks of the road include those arising from the sort of faulty driving and lack of care which must be expected due to human frailty, from time to time, from the ordinary driver. The sort of driving which constitutes this crime is more serious than that. It is driving which a reasonable person in a situation of the driver would understand to be such as would give rise to a serious risk of injury to members of the public going beyond the ordinary risks of the road’. That’s for you to decide. Thank you very much.
The judge’s multiple attempts to sum up the case to the jury could only have left them in a state of confusion. The entire process was unsatisfactory. For this reason alone there was a material risk of a miscarriage of justice.
Remaining Deficiencies
Counsel for the Crown accepted on appeal that the judge’s unsatisfactory approach compounded the earlier identified deficiencies. The defence case was not adequately identified. The judge did not provide the jury with assistance about the meaning of substantial cause or a direction as to how they might use the evidence in its entirety to reach a conclusion about causation. The prejudice arising from the judge’s example remained unresolved.
Ruling – Admissibility of Evidence
Counsel for the Crown provided a witness statement of Peter James Hackworth to the defence. Mr Hackworth stated that at about 4.40pm on 1 September 2001 he was driving north on Adelaide Road. He said:
I saw a white VT Holden Commodore Sedan in the rear view mirror. It was approaching from behind and was travelling at a faster speed than I was but wasn’t travelling too fast. As the Commodore got closer it moved out to the right to overtake me. At the point the car was overtaking me the road was straight and level but had a single unbroken barrier line painted on the road. The Commodore then overtook me and didn’t increase speed. It appeared to be travelling at just over 80 km/h. When the Commodore was alongside of me I looked across at the driver, a male, who was the only occupant. I pointed down to the while line to indicate to him that he shouldn’t be overtaking me there but he continued to look straight ahead and didn’t acknowledge me in anyway.
After passing me the Commodore moved back onto the correct side of the road and continued driving at the same speed. It continued travelling at the same speed it had overtaken me and gradually moved away from me. When the Commodore overtook me I don’t recall whether it’s indicators were used or not. There were no cars in front or behind me at that time and there were no cars approaching from the opposite direction. Other than the fact he overtook over the single barrier line, the speed and manner this motorist overtook me was safe. The Commodore then entered the 110 km/h zone and I lost sight of it due to curves and rises in the road.
Several minutes later Mr Hackworth came on the scene of the collision. He recognised Mr Baker’s vehicle as being the white VT Holden Commodore sedan that had overtaken him. Mr Hackworth made no allegation of excessive speed on the part of Mr Baker.
Counsel for the Crown also provided a witness statement of Deborah Jane Riley. Mrs Riley stated that between 4.00pm and 5.00pm on 1 September 2001 she was travelling north on Adelaide Road. She continued:
I looked in my mirror and saw that a white Holden Commodore was overtaking both the van and me at the same time. I immediately looked at my car’s speedometer and saw that I was travelling at 90 km/h and I thought straight away that the Commodore was travelling too fast. I estimated the Commodore was travelling at a speed of not less than 130 km/h. The Commodore then passed me and moved onto the correct side of the road, and it continued travelling at a similar speed to which it overtook me. I then lost sight of the Commodore as it pulled away from me.
Shortly after this observation Mrs Riley came on the scene of the collision. She identified Mr Baker’s vehicle as being the white Holden Commodore that had overtaken her vehicle.
Defence counsel requested that counsel for the Crown present Mr Hackworth and Mrs Riley for cross-examination. Counsel intended to elicit evidence from those witnesses to establish a course of driving by Mr Baker said to demonstrate that his faculties were impaired by intoxication and that he would take risks when driving. The judge considered that the proposed evidence was irrelevant and inadmissible:
Mr Edwardson submitted, in regards to that, there is a nexus between that and, indeed, the conduct of the driver, Mr Baker, in view of the nature of the accident and what appears to be no evading course at all or, for that matter, there might not be any braking. However, he says, because of the nature of the evidence that Dr James gave, that this all points to a nexus between the effects of the increased risk-taking that were evident then by reason of Mr Hackworth’s evidence and may well be evident when relating to the manner of driving up to the point of impact.
There is a further statement of Ms Riley, who said, in her statement, she obviously became concerned. Her speed was 90kph, I think, in a 100kph zone, and there was a van towing a trailer behind her and then the Commodore overtook them, both the van and her. She thought its speed was too high and she estimated the speed at 130kph. One has to bear in mind that the Commodore then is passing, in effect, three units; the trailer, a van and then her car. She then estimated the speed at 130kph, then it moved to the correct side of the road and she saw it continue travelling at a similar speed, and then lost sight of it.
The inference here, as put by Mr Edwardson, is that there is a propensity for high speed by this driver.
In my view, there are real risks in putting that material before the jury and the inferences that can be drawn. I do not believe there is a nexus as suggested by defence.
My view is that the Crown are not obliged to put this evidence or indeed make the witnesses available for cross-examination as, indeed, there are too many risks and inferences which could be drawn by the jury in an incorrect manner and I so rule.
An individual’s conduct at a given point in time may be proven as a circumstance from which it may be inferred that the conduct was the same at a relevant point in time before or after the given time. In the present case counsel for the appellant contended that at the time of the collision Mr Baker’s faculties were grossly impaired by his state of intoxication and that as a result his standard of driving departed from that of the prudent driver. His conduct was said to have been the cause of the collision. Counsel wished to lead evidence at trial from Mr Hackworth to establish that Mr Baker as a consequence of intoxication was unaware of or indifferent to road markings relevant to safe driving. It was submitted that evidence of Mrs Riley should have been admitted. Her evidence, if accepted, would establish that shortly before the collision Mr Baker drove at an excessive speed with consequent risks to other road users. This manner of driving was said to be linked to his intoxicated state.
In Martin v Osborne[14] Dixon J discussed the admissibility of circumstantial evidence:
If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts provided would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts of ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.
…
The repetition of acts or occurrences is often the very thing which makes it probable that they are accompanied by some further fact. The frequency with which a set of circumstances recurs or the regularity with which a course of conduct is pursued may exclude, as unreasonable, any other explanation or hypothesis than the truth of the fact to be proved.
In R v Horvarth[15] the Victorian Full Court observed:
Where acts of driving are substantially separated in time and place, evidence of one is not, in our opinion, evidence of negligence of the other, in the absence of some connecting link, such as existed in R. v. Buchanan [1966] V.R. 9, or in R. v. Lewis, [1913] V.L.R. 227; 19 A.L.R. 107. Failure to exercise care, depending, as it does, on the particular circumstances of the occasion is, in our view, not a constant feature of human behaviour and, accordingly, failure at one place and time not forming part of the occasion in issue does not, in itself, tend to prove failure at another time and place.
In Buchanan the connecting link was intoxication.
[14] (1936) 55 CLR 367
[15] (1972) VR 533 at 538

The proposed evidence of Mr Hackworth and Mrs Riley was evidence of circumstances of driving on the part of Mr Baker tending to prove his faculties were impaired by alcohol at a point of time shortly prior to the collision. The evidence tended to prove that Mr Baker was prepared to engage in risky and dangerous driving. Mr Hackworth’s evidence was capable of proving that Mr Baker was either unaware of road markings relevant to his course of travel or that he was indifferent to the need to comply with them. Mrs Riley’s evidence was capable of establishing that Mr Baker was either unaware that he was travelling at an excessive speed or alternatively that he was indifferent to the risks created. The proposed evidence of Mr Hackworth and Mrs Riley was relevant and admissible.
The Proviso
As earlier observed the Crown submitted that no miscarriage of justice had occurred and that the proviso should be applied to uphold the appellant’s conviction.[16] It is necessary to evaluate the prejudice occasioned by the misdirections. All were prejudicial to the appellant on central issues in the case. There was a risk of a miscarriage of justice[17]. The appellant did not receive a fair trial.
[16] The proviso appears in section 353(1) of the Criminal Law Consolidation Act 1935 (SA) which provides:
[17] Driscoll v The Queen (1976-1977) 137 CLR 517 at 524-5; Mraz v The Queen (1954-56) 93 CLR 493 at 514; Domican v The Queen (1991-1992) 173 CLR 555 at 565-567; Festa v The Queen (2001) 76 ALJR 291 at 326; Ugle v The Queen (2002) 76 ALJR 886
This appeal should be allowed. The matter should be remitted for a retrial.

Causing Death by Dangerous Driving. (Section 19A(1) of the Criminal Law Consolidated Act, 1935).

Particulars of Offence
Roland David Allen on the 1^st day of September 2001 at Strathalbyn, drove a motor vehicle in a manner which was dangerous to the public and thereby caused the death of Charles David Baker.

“The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

[2003] SASC 309

2 October 2003