R v B, JA - [2007] SASC 323

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, JA
[2007] SASC 323
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Kelly)
31 August 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appeal against conviction - causing death by dangerous driving - whether Judge erred in refusing to leave defence of necessity to jury for consideration.
Held - Judge did not err - no evidence available on which jury could conclude appellant had no reasonable alternative but to drive as he did - alternative courses of action were reasonably open to appellant - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 19A, referred to.
Dudley v Ballantyne (1998) 28 MVR 209, distinguished.
R v Loughnan [1981] VR 443, discussed.
Rogers (1996) 86 A Crim R 542; Van Den Hoek v The Queen (1986) 161 CLR 158; The King v Coventry (1938) 59 CLR 633, considered.

R v B, JA
[2007] SASC 323
Court of Criminal Appeal: Doyle CJ, Anderson and Kelly JJ

DOYLE CJ: B was tried before a jury in the District Court and found guilty of causing the death of Mr Rostom by dangerous driving, contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). He appeals against the conviction, permission to appeal having been granted by a Judge. The appeal raises one issue only. Did the trial Judge err in refusing to leave to the jury for their consideration the defence of necessity?
Should the Judge have told the jury that even if they were satisfied that B drove in a manner dangerous to the public, and thereby caused the death of Mr Rostom, they could convict only if satisfied beyond reasonable doubt that B did not drive as he did because he honestly believed on reasonable grounds that it was necessary to drive dangerously to avoid a threat of death or serious injury to himself or to other persons in the motor car that he was driving?
The Judge declined to direct the jury along these lines. The Judge ruled that the evidence did not raise the issue of necessity. That is, the evidence before the jury did not provide a basis for the defence to be considered.
The trial
At about 4.00 am on Wednesday 7 July 2004 B and S were each driving a motor car along North East Road towards Adelaide. They were friends. Each car was being driven unlawfully. B and S had taken the cars without the consent of the owners. They had been engaged in this activity for some hours.
Each of them had friends in the motor car with him. Mr Rostom was in the car being driven by S. I gather that the group had been together for some hours.
The events that I now describe occurred over the course of some minutes. The distance that the cars travelled is unclear, but it must have been a kilometre or two.
On two or three occasions B’s car drew a short distance ahead of S’s car, then slowed down a little. Both cars were travelling fairly fast, the speed of travel being estimated by most witnesses at more than 60 kilometres per hour, most witnesses putting the speed at about 80 kilometres per hour and sometimes faster.
On each occasion after B drew ahead, S caught up with B. Then B drew a short distance ahead again, and slowed down, and S caught up once more.
As I said, this happened at least two or three times.
When S caught up it seems that the two cars drove, roughly level with each other, and very close together, perhaps only about 30 centimetres apart.
On one occasion when B was ahead of S, an object was or objects were thrown from B’s car at S’s car. This had nothing to do with B. He did not encourage it in any way. It seems to have been done as a joke, and not in anger. There was evidence that Mr Rostom threw a champagne bottle at the back of B’s car during one of these manoeuvres.
At one stage when the two cars were close together Mr Rostom lent out of the left side of S’s car and hit B’s car, probably with a steering wheel lock. Then he threw the lock at the car. Some witnesses suggested that this was the last occasion on which the two cars were travelling parallel and close together, some suggested it was one of the earlier occasions.
After this series of events, the two cars were travelling alongside each other, at a speed variously estimated between about 70 kilometres an hour and about 80 kilometres an hour or more. They were close together. One of the cars bumped the other. Then, according to most of the witnesses, the other car bumped the first car. Different witnesses attributed the first bump to B or to S. Some suggested that one or other of the bumps was deliberate.
In any event, it seems the two cars bumped together twice. Then the car driven by S went sliding to the right across the median strip, and finished up colliding with a structure that was part of a petrol station on the opposite side of the road. Mr Rostom was killed.
That summary of events is drawn from the evidence of a number of witnesses. There is a fair degree of divergence in the details of what they said, but the overall picture is reasonably clear. I should add that B had a reasonable amount of driving experience. It appears that S had very little driving experience, and that on the night his lack of experience was demonstrated on a number of occasions.
Before the Judge summarised the evidence of the various witnesses, he gave the jury a broad outline of the prosecution case. This is what he said:
It is alleged - and this is what the prosecution case is - that they were driving at a high speed, very close to each other and playing some sort of game, variously described as drag-racing or playing chicken. I repeat to you what I said yesterday, it is important to ignore those labels and look below and find out what it is that is really meant by those choice of words. What do the people actually see with their own eyes and perhaps ears? It is said that they were scraping each other at times. [S] was in the lane closest to the middle of the road and [B] was in the left lane closest to the gutter and kerb.
The prosecution’s case is that [S’s] car bumped [B’s] and that [B] responded by bumping [S’s] car. One of the questions, a factual question that is raised by the case is whether or not that was a deliberate bumping or whether or not it was a knock, as it were, by [B] to [S] as [B] was endeavouring to regain control after his car had been hit. That is a factual consideration obviously for you.
You know that after one or two bumps - that is a factual matter for you – [S’s] car was then out of control, mounting the kerb and rotating so that eventually it hit the strong steel support for the pricing sign, striking it, going backwards in the area of the back left-hand side wheel arch. Abrahim Rostom, a passenger in the back seat, sustained a significant internal head injury such that he died a few days later.
The prosecution case is that what there was was a progression of stupid and then dangerous driving as they went along North East Road, perhaps initially having fun but with later dangerous driving and disastrous consequences.
That summary appears to me to be a fair summary of the prosecution case at trial. The prosecution case appears to be based on an argument that it was dangerous to drive on a public road at night, at a relatively high speed and in such close proximity to another car. To describe the pattern of behaviour as “drag racing or playing chicken” was, as the Judge said, not particularly helpful. It was a matter of looking at what the drivers actually did.
On another occasion, in the course of the directions, the Judge emphasised to the jury that the driving they were concerned with was the driving close to the time when S’s car veered to the right and ran off the road. [111] The Judge completed his summary of the prosecution evidence with the following remarks:
The prosecution submit that there is no doubt that this was dangerous driving by both. That they were, in effect, encouraging each other and egging each other on to race or drag at speed. There was either a misjudgment or a deliberate bumping, but it was dangerous and, on the prosecution’s submission, well before that, such that the test for manslaughter is achieved before any bumping took place, but certainly after.
When considering that, you should consider that the accused [S] did not have any sort of licence and, by any standards, was very inexperienced and simply did not have sufficient skills to drive and manoeuvre, let alone at speed.
Effectively, the prosecution says that the emphasis now by the accused on the throwing of items from the cars as some reason for excessive speed and being close to one another has been blown completely out of proportion.
The prosecution submits to you, in effect, that the throwing of things was part of the evening’s fun and may have been acts of stupidity but did not represent a dangerous situation, and other options were available such as slowing down or simply ignoring it or turning off.
The prosecution says if you look objectively at the driving of each as disclosed by the passengers, Ms Fabian and Mr Hera-Singh, speeding up and slowing down, speeding up and slowing down repeatedly, driving close to each other at speed was a recipe for disaster, and so it was.
B gave evidence. He said he was an experienced driver. He denied that at any stage that night he deliberately bumped the car driven by S. He admitted the illegal use of the motor cars, but told the jury that was all that was involved, and that there was no plan to go “head to head”. The Judge appears to me to have fairly summarised his evidence, and for convenience I set out that summary:
He says that he was aware things were being thrown from the cars. He heard glass smash and that stunned him and he shouted “cut it out”. The throwing continued, so he sped up to put some distance between his car and the other car. He says that he got about 15 car lengths in front and took his foot off the accelerator. He says that he was worried about the girls in his car. He says that he was planning to turn left at the next intersection or at least main road. He says that although he got ahead of [S’s] car, as they approached the collision scene [S] was next to him again with Abrahim [Rostom] trying to hit his car with a metal bar. He says somehow the two cars knocked. He felt the back end go left and hit or mounted the left kerb. He turned the steering wheel to the left to regain control, then to the right as part of that process and hit [S’s] car. [S’s] car slid out and went over the median strip into the sign.
…
He says that at no time did he deliberately steer into [S’s] car and, whilst acknowledging he may have been travelling over the speed limit at times and when the collision occurred, they were not dragging or racing. If he was speeding at the time of the collision, he says it was because he was trying to get away from that danger represented by the other car, particularly Abrahim Rostom. It was said on his behalf that you should devote considerable attention to the throwing of which he was not part or that he encouraged. It is said that what he did was necessary and that there was no other reasonable course available to him in the circumstances that unfolded and that were not of his making.
S also gave evidence, but his recollection of events was quite limited.
B and S were tried together. Each of them was charged with manslaughter, but each was acquitted on that charge. Each was convicted on the alternative charge of causing death by dangerous driving. They were each convicted of other offences arising out of the accident that occurred.
No complaint is made about the directions that the trial Judge gave to the jury in relation to the offences that they had to consider. The Judge’s directions were in accord with the authorities. In relation to causing death by dangerous driving he directed the jury, on a number of occasions, that they had to be satisfied that B drove in a manner that was dangerous to the public. He drew the distinction between departures from the standard of care that might be acknowledged as a risk of the road, and departures from that standard of care which imposed on other users of the road a risk which any reasonable person would recognise as a real danger to the public. He emphasised that the test was an objective one. He told the jury that dangerous driving was driving which an objective observer would recognise as creating a real danger to the public. In this respect he said to the jury [157]:
Ladies and gentlemen, you will have noticed that proof of dangerous driving does not require any proof as to the accused’s state of mind. An accused need not have intended to drive dangerously or even averted to the fact that he was doing so. Everything is judged through the eye of the reasonable observer. It is the potentiality of the driving viewed objectively that is crucial. …
(This passage is an extract from written directions provided to the jury.)
Before the Judge summed up to the jury, he was asked by Mr Apps, counsel at trial and on appeal, to leave the defence of necessity to the jury. He declined to do so for two reasons. First, the Judge said that there were reasonable alternatives open to B. By this he meant alternatives to continuing to drive at the speed he did, with S so close alongside him on several occasions, and in particular on the occasion immediately preceding the accident. He said that B could have turned off the road, or could have slowed down or stopped altogether. His second reason was that the defence of necessity fell for consideration only if the offence charged was established. It arose as an excuse for what would otherwise be an offence. He made the point that on B’s evidence he claimed that he sped up (a reference to drawing ahead of S) because of an anticipated threat to the passengers in his car. The Judge said that that response to the threat did not involve any dangerous driving, but at most involved breaking the speed limit.
Finally, I should add that in his evidence B identified the threat to which he was responding as a threat of some kind of harm from Mr Rostom. He said there was a risk that the windows of the car might be broken, and fragments of glass might injure one of his passengers. This appears to be a reference to the conduct of Mr Rostom when, according to some witnesses, he was striking B’s car with a steering car lock. He also referred in a very general way to the risk of aggressive behaviour by Mr Rostom, appearing to suggest some apprehension that if he stopped Mr Rostom might behave violently towards him or his passengers.
The excuse or defence of necessity
The elements of the defence or excuse of necessity were considered by the Full Court of the Supreme Court of Victoria in R v Loughnan [1981] VR 443. At 448 the law was stated as follows:
It will be seen ... that there are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect. The limits of this element are at present ill defined and where those limits should lie is a matter of debate. But we need not discuss this element further because the irreparable evil relied upon in the present case was a threat of death and if the law recognises the defence of necessity in any case it must surely do so where the consequence to be avoided was the death of the accused. We prefer to reserve for consideration if it should arise what other consequence might be sufficient to justify the defence ...
The other elements involved ... can for convenience be given the labels, immediate peril and proportion, although the expression of what is embodied in those two elements will necessarily vary from one type of situation to another.
The element of imminent peril means that the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril. As Edmund Davies LJ pointed out in Southwark London Borough Council v Williams and Anderson … all the cases in which a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril. Thus if there is an interval of time between the threat and its expected execution it will be very rarely if ever that a defence of necessity can succeed.
The element of proportion simply means that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Put in another way, the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril? … (footnote omitted)
This statement of the law was considered by Gleeson CJ, with whom the other members of the Court agreed, in Rogers (1996) 86 A Crim R 542. His Honour appears to have accepted the statement of the law as accurate, although he made the point at 546 that it is more appropriate to treat the three elements or requirements referred to in Loughnan:
… not as technical legal conditions for the existence of necessity, but as factual considerations relevant, and often critically relevant, to the issues of an accused person's belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response.
The discussion of the defence or excuse of necessity by Gleeson CJ is a helpful one. He rightly emphasises the reasons why the defence is one that must be kept within carefully confined limits.
It was not argued on appeal that a defence or excuse of necessity was not available under the law of this State. For present purposes I proceed on the basis that the law is accurately stated in Loughnan, subject to the comments made by Gleeson CJ in Rogers. There is no need in the present case to consider in any detail the scope of the defence or excuse of necessity.
The application of the legal principles to the facts of the case
I have set out above the Judge’s summary of B’s evidence.
The question on appeal is whether there was evidence before the jury which, if believed, might reasonably have led the jury to return a verdict of not guilty on the grounds of necessity: see Van Den Hoek v The Queen (1986) 161 CLR 158 at 162. For the purposes of his directions, the Judge had to proceed on the basis that the jury might have accepted B’s version of events, or might have been prepared to accept that version as a reasonable possibility. Accordingly, if on that version of events it was open to the jury to conclude that the defence or excuse of necessity had not been negatived by the prosecution, it was the duty of the Judge to direct the jury as to the availability of the defence or excuse of necessity.
I agree with the Judge’s conclusion that, even on B’s version of the events, the defence or excuse of necessity was not available.
The focus of the defence is on the response of the accused person, in this case B, to a threat of death or serious injury. The issue for the jury (ignoring questions of onus) was whether B believed, on reasonable grounds, that it was necessary for him to drive in a dangerous manner to avoid threatened death or serious injury. As Gleeson CJ said in Rogers at 547:
The relevant concept is of necessity, not expediency, or strong preference. If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgments different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of a coherent legal system, would be undermined.

On his own version of events, B’s response to a suggested threat of serious injury to him or to his passengers (nothing more than that could be suggested on B’s evidence) from Mr Rostom was to accelerate and to draw a short distance ahead of the car driven by S, each time S drew alongside B’s car. So the response to the suggested danger was to draw away from S, each time his car came alongside.
However, the dangerous driving in this case was not that response of increasing speed and drawing ahead. The dangerous driving was the act of driving alongside and very close to the car being driven by S, at a fairly high speed. Each time this happened B was not trying to escape from or to avert a threat of serious injury from Mr Rostom. At this stage in the course of events, even on B’s evidence, he was not doing anything to escape from the suggested threat.
The dangerous driving that led to the collision and death was the act of driving close to S and at a high speed, including the bumping together of the two cars, whether deliberate or accidental. The dangerous driving was not the response by B to a perceived risk of serious injury, which response consisted of accelerating so as to draw ahead on two or three occasions, then slowing down again.
I consider that, in the circumstances of the case, reliance upon the defence or excuse of necessity was misplaced. Other than when B was drawing away from S, B was not engaging in dangerous driving as a response to a threat or serious injury from Mr Rostom.
B’s answer to the charge was, in substance, found within the Judge’s summary of his evidence, which I have set out above. That answer was that the dangerous aspect of the situation was entirely the product of S’s driving. S came up alongside, producing a dangerous situation, and when he did B removed the source of danger almost immediately by pulling ahead. If the jury thought that this version of events was a reasonable possibility, or could not be rejected, the jury would surely have acquitted B on the basis that he had not driven in a manner dangerous to the public. On this approach, as soon as S produced a dangerous situation, B put it at an end.
I make this point, not because it is an answer of itself to reliance on the defence of necessity, but to emphasise that on B’s own case he was not saying that he drove dangerously because he believed on reasonable grounds that he had to do so to avert serious injury (other than when he accelerated to draw away), but that the answer that arguably arose on his evidence was not one of necessity, but that he had not in fact driven dangerously at the relevant time: cf Dudley v Ballantyne (1998) 28 MVR 209 at 211-212.
I do not consider that my approach is either artificial or unduly clinical.
In his submissions to the trial Judge and on appeal, Mr Apps focussed on the fact, as he argued, that B was speeding up to put some distance between his car and the car being driven by S, then slowing down, then finding that S caught up with him. Mr Apps treated the death of Mr Rostom as a consequence of this series of events. He treated the whole sequence of events as the relevant dangerous driving.
I do not agree with the suggestion, to some extent explicit and to some extent implicit in this approach, that the whole series of events is to be regarded as a response by B to a perceived threat of serious injury from Mr Rostom, or as the cause of Mr Rostom’s death.
The evidence disclosed a series of episodes involving the two cars driving dangerously fast and dangerously close to each other. On the version most favourable to B, each incident was separated by an attempt by B to draw away. But the relevant dangerous driving occurred when the two cars were travelling close together at a fairly high speed. That state of affairs was not a response by B to a threat of serious injury. It was a situation brought about by S, on B’s version of events, to which B responded after a short interval of time. His answer, if the jury was prepared to accept it as a reasonable possibility, was not that the dangerous driving resulted from B’s efforts to avert the threat of serious injury, but that the dangerous aspect of the situation, to which he reacted a few seconds later, was the product of S’s manner of driving. The case fell within the comment made by Latham CJ, Rich, Dixon and McTiernan JJ in The King v Coventry (1938) 59 CLR 633 at 638 that:
Sudden, even though mistaken, action in a critical situation may not, in all the circumstances of a case, constitute driving to the danger of the public.
There is another independent reason why the defence did not arise.
The defence was available only if it was a reasonable possibility that B had no reasonable alternative but to drive as he did, giving rise to a danger of death or injury.
The Judge rightly concluded that there was no evidence upon which a jury could reach that conclusion.
I agree with the Judge that B had open to him a number of obvious alternatives. He could have stopped his car before the final stage of events. There was no evidence to suggest that he could not do this. I do not consider that his suggestion that Mr Rostom might have made some kind of attack, if both cars stopped, is an answer to that possible response. B could have drawn away from S, without slowing down after doing so, permitting S to catch up. The evidence indicates that B was driving a more powerful car, and he was the more experienced driver. B could have turned off to the left into a side street. His evidence that he was not familiar with the streets in the locality is not an answer to that. B could have slowed down substantially, and could have positioned himself behind the car driven by S. As I have said, I agree with the Judge that there were a number of alternative courses of action reasonably open to B, and that on the evidence before the jury a conclusion that he had no reasonable alternative other than to drive as he did was not open.
For those reasons I agree with the decision of the trial Judge. In broad terms, I consider that it is artificial and unrealistic to attempt to analyse the events in question in terms of a defence of necessity.
Conclusion
For those reasons I would dismiss the appeal against conviction.
ANDERSON J: In this matter I agree with Doyle CJ that the appeal should be dismissed.
In my view the trial judge was correct in declining to leave the defence of necessity to the jury. I agree with Doyle CJ that there was no evidence upon which a jury could reach the conclusion that there was any reasonable possibility that B had no reasonable alternative but to drive as he did.
KELLY J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.