R v Breuker - [2011] SADC 64

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BREUKER
[2011] SADC 64
Ruling of Her Honour Judge McIntyre
11 May 2011
CRIMINAL LAW
I uphold the defence submission that there is no case to answer. There will be a directed acquittal on the charge. I will hear counsel on the alternative offences.
Criminal Law Consolidation Act 1935 s19A(1); Road Traffic Act 1961 s46, referred to.
R v S (1991) 22 NSW LR 548 @553-4; Farrah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89 @ 151-2; R v Palmer [2008] SADC 122; Ardill v Police [2005] SASC 450; Graham v Police (2001) 122 A Crim R 152; Senior v Senior [2005] SASC 88, considered.

R v BREUKER
[2011] SADC 64

The defence has submitted that there is no case to answer to a charge of causing death by dangerous driving contrary to s.19A (1) of the Criminal Law Consolidation Act 1935. This is my ruling on that application.
The particulars of the offence are as follows:
William Michael Breuker on the 28^th day of October 2006 at Keswick drove a motor vehicle in a manner which was dangerous to the public and thereby caused the death of Denis Dzaferovic.
The charge arises out of a tragic event. The circumstances are most unusual and, in many respects, uncontentious. The accused was a member of a band engaged to perform at a Christian youth event held at ETSA Park on 28 October 2006. The band was to perform on a temporary stage – the back of a semi-trailer on the outdoor netball courts next to the ETSA stadium. The event was a ticketed event but was not due to start until some hours after the events in question. Members of the public had not therefore started to arrive.
The accused and fellow band members were preparing for the event. Other people were setting up for other activities. The accused drove his car, a Ford Falcon sedan, into the netball courts in order to unload his equipment. The netball courts were fenced and the only access to them was through a single gate.
The deceased was known to the accused and was a fan of his band. They attended the same church from time to time. They were of a similar age – the accused was 18 and the deceased 17. It is clear from all the evidence that the accused and the deceased had a good relationship.
The deceased offered to show the accused around the ETSA stadium. The accused told the deceased that he needed to return his car to the car park and that he would meet him at the stadium. The events that form the subject of the charge occurred as the accused reversed his car away from the temporary stage towards the car park.
It is uncontentious that the driving in question took place within the confines of the fenced netball court, that it was in a straight line and that it was for a short duration both in time and distance. The deceased was on the boot of the accused’s car whilst it was running. The accused knew he was on the boot and, on the prosecution case, decided to give him a scare by speeding up. Estimates of the speed vary and for present purposes it is not necessary to canvass those estimates. There is evidence that the deceased called out “stop” or “slow” and that the accused responded to this. Precisely how he did this whether by braking or by decelerating is contentious.
During the course of this driving the deceased either fell or jumped off the vehicle, falling awkwardly and fracturing his skull on the bitumen surface of the netball courts. It is an agreed fact that the cause of death was a severe closed head injury associated with skull fractures. Neither the accused nor the deceased were affected by drugs or alcohol. There were no mechanical or other problems with the accused’s vehicle that could have caused or contributed to the incident.
There are three elements to the offence, each of which must be proven beyond reasonable doubt by the prosecution. Those elements are:
1.     That the accused was the driver of the motor vehicle.
2.     That the motor vehicle was being driven in a manner which was                    dangerous to the public; and
3.     That by driving in this manner the accused caused the death of the                 deceased.
The prosecution say that the accused drove in a manner that was dangerous to the public thus causing the deceased’s death. In particular the prosecution say that any ordinary driver in the situation of the accused would have recognised the potential risk of injury to the deceased that might occur in circumstances where:
·The deceased was sitting unrestrained on the boot of the vehicle;
·The road surface was the bitumen netball court;
·The vehicle accelerated suddenly;
·The vehicle accelerated at speed;
·The deceased had no warning of the accused’s intention to accelerate;
·The accused was deliberately trying to frighten the deceased;
·The nature and quality of the driving was such that it did in fact frighten the deceased.
The prosecution very properly concede that the only person endangered was the deceased. It is not asserted that any other person was in any danger from the accused’s driving.
The defence says that the prosecution has not proven the second element in two respects. First, it has not proven that the accused’s manner of driving was dangerous; and second, it has not proved that it was dangerous to the public.
For the purpose of this application I must take the prosecution case at its highest. It is my view that there is evidence capable in law of supporting a conviction on the topic of the manner of driving. I would not withdraw that matter from the jury.
The second issue, whether the accused can be regarded as a member of the public who was the subject of the danger, is more problematic.
With no disrespect to either counsel, I note that their submissions altered during the course of argument as to whether this is a question of law or a question of fact. Ultimately it appears to be the case that counsel for the defence contends that it is a question of law and counsel for the DPP contends that it is either a question of fact or a mixed question of law and fact. There was also a change in position, at least on the DPP case, as to whether I should follow a decision of the New South Wales Court of Criminal Appeal in R v S[1]. Initially it was contended that I should follow this decision and indeed it was referred to in the written submissions filed by the DPP. Later, I was urged to consider whether it did apply given that it was interstate authority dealing with different legislation. I am not being critical of these submissions – it seems to me that they are a reflection of the difficulty attendant upon the issues in this case.
[1] (1991) 22 NSW LR 548 at 553-4
I have taken the view that, whilst the comments of the Court in R v S relate to the offence of culpable driving as defined in the New South Wales legislation, the case is relevant and should be applied. In saying this I note:
The similarity of the wording of the relevant sections. Specifically both sections deal with the concept of driving in a manner dangerous to the public;
The fact that purpose of the legislation in each case appears to be the same namely the protection of the public from the harm that may result from the use of a motor vehicle whether on the public highway or elsewhere;
The injunction by the High Court of Australia that trial judges in Australia should not depart from a decision of an intermediate appellate court in another jurisdiction in relation to Commonwealth legislation, uniform legislation and non-statutory law unless they are convinced that the decision is plainly wrong.[2] I do not consider that this decision is wrong – plainly or otherwise.
[2] Farah Constructions v. Say-Dee Pty Ltd (2007) 230 CLR 89 at pages 151-152
That this decision has been adopted by this Court with approval R v Palmer.[3]
[3] [2008] SADC 122
It is my view that the question of whether the deceased is a member of the public is a question that should be determined as a matter of law. This is the approach taken by Judge Wilson in Palmer and, with respect, I agree.
I am fortified in that view by the difficulty that counsel for the DPP had in articulating the charge to the jury. Initially he made a suggestion that he agreed was circular. Then, after time for reflection he said that I should:
……direct the jury in terms that he is capable of being considered a member of the public providing the jury find the following; and that would require an identification of those factors which could prevent him being a member of the public. That would include, it wouldn’t be limited to, whether he had knowledge of what was going to happen, whether he consented to what had happened, or, indeed whether he excluded the possibility. The crown had excluded the possibility that he didn’t consent. That is, of course, how it should be put.[4]
[4] Transcript p 213
There are a number of problems with this formulation but, in particular, it demonstrates that the question of characterisation of the deceased is a question of law albeit based upon matters of fact.
I now turn to the determination of that question. The position put by the prosecution appears, properly analysed, to be that the deceased is prima facie a member of the public until proven otherwise. It is stating the obvious to say that this reverses the onus of proof. The accused need not prove anything. It is for the prosecution to establish that he was a member of the public beyond reasonable doubt. This involves a consideration of the issues discussed in R. v S.
Chief Justice Gleeson summarised his views in R v S[5], in which the other members of the Court concurred, as follows:
The mere fact that a person, whether a passenger or not, who is endangered by certain driving has some kind of relationship or association with the driver does not of itself deny the possibility that such a person is to be regarded as a member of the public for the purposes of s.52A. In particular, the fact that the person endangered, whether a passenger in the vehicle of not, and whether on the highway or in some other place, is a spouse or child or relative or friend or business associate of the accused driver is immaterial. Having regard to the purposes of the legislation, and the context in which the expression “to the public” appears, those forms of relationship are irrelevant.
There is however a form of relationship between passenger and driver, which could well have existed in the facts and circumstances of the present case and which would negate the conclusion that the passenger is to be regarded as a member of the public. This is a consideration related to what seems to me to be the factual, as distinct from the legal, significance of the circumstance that the activities in question were taking place on a private property and away from any highway. As I understand the facts of the present case, the respondent and his two passengers, including the victim, were all engaged in a form of skylarking. The three of them got into the vehicle in question together for the purpose of amusing themselves by a particular, and somewhat dangerous, form of recreational activity directly connected with the driving of the vehicle. That activity constituted a danger to all three of them, but to nobody else. In the circumstances where it is proper to regard the activity which is said to constitute the driving in a manner dangerous as part of a joint escapade on the part of the driver and the passengers, they being the only persons endangered by the activity, then I would not regard it as proper to characterise the passengers as “the public”.
[5] (1991) 22 NSW LR 548 at 553-4
The operation of s.19A(1) of the Criminal Law Consolidation Act 1935 is not limited to events occurring on a road. The fact that this matter took place on a netball court is to that extent irrelevant, however, it is relevant to the relationship between the accused and the deceased. The location of the incident is not private property nor is it a public highway. It was not normally a location where one would expect motor vehicles to be present. It was a location to which access was restricted at least at the time of these events. The people who were present in the vicinity of the temporary stage were generally young people engaged in setting up for the event. Most of them knew each other to some extent or another. It was a friendly and convivial environment.
The defence say that the circumstances of how and why the deceased got onto the accused’s vehicle are central to the issue of whether the deceased was a member of the public. I agree. There is no evidence why the deceased got on the accused’s car. At its highest, the case for the prosecution is ambiguous on the question of when precisely he got on the accused’s car. Most witnesses did not pay attention to the accused’s car until the deceased called out. Only one witness gave evidence that she saw how the deceased came to be on the car. That was Rachel Gray who gave evidence as follows:
QHow far were you from Denis at the time of the accident bearing in mind your sketch plan
AAt the time that he jumped on the car or when he fell off?
QAt the time he jumped on.
AProbably 3 to 4 m as an estimate.
QHow is your eyesight
AGood
QYou don’t need glasses
ANo
QYou say Denis jumped on the car.
AYes
QWhen he jumped on the car, was anyone in it.
AYes, Will.
QWas the car moving or was it stationary when Denis jumped on it.
AMoving
QWhat speed was it moving at
AWalking pace.[6]
[6] Transcript p104
This evidence is consistent with some of the other witnesses and the accused’s record of interview with police. It is not inconsistent with the remaining witnesses. The defence says that this evidence indicates that the deceased got onto the vehicle after it started to move, that this was an inherently dangerous act and that in context he thereby elected to take part in an escapade involving an element of risk. It is said that this is on all fours with the decision in R v S and that in consequence the deceased cannot be said to be a member of the public.
The prosecution say that there is a distinction to be drawn between this matter and the circumstances in R v S and for that matter those in R v Palmer. In those cases it is said that the parties involved were all willingly involved in the act that was dangerous. The prosecution say that the act that was dangerous in this case was the acceleration. The deceased did not consent to the acceleration. He did not cease to be a member of the public because he got on a moving vehicle at 5 kilometres per hour. This latter submission, as I have said, reverses the onus of proof. Further the submission as a whole conflates the manner of driving with the issue of who constitutes the public.
As Judge Wilson said in response to similar submissions in Palmer the two concepts cannot and ought not be mixed. In any event, the submission is based upon a reading of R v S as saying only a jointly agreed activity prevents the deceased from being characterised as “the public”. This cannot be correct. The decisions in R v S and Palmer are couched in terms of “skylarking”. This concept is far from a considered and agreed course of action. Taken at its highest the prosecution case does not exclude skylarking. Gleeson CJ made it plain in his reasons that he was not excluding the possibility of other relevant forms of relationship. Further I see no reason in principle why the accused should be in a worse position if the deceased voluntarily and without his agreement puts himself in an inherently dangerous position than if they jointly agreed to that course of action. It is not the presence or otherwise of an agreement between the accused and the deceased which characterises the deceased as a member of the public it is the characterisation of the relationship that determines this issue.
I was referred to a number of Supreme Court of South Australia decisions on s.46 of the Road Traffic Act 1961 in a somewhat cursory manner with minimal assistance as to their relevance.[7] Judge Wilson who was also referred to these decisions said:
It would appear that R v S was not cited to any of the judges who were called upon to hear and determine those justices appeals, all of which were concerned with the Road Traffic Act and not the Criminal Law Consolidation Act, and all of which were concerned with incidents on public roads and not on private property.
[7] Ardill vPolice [2005] SASC 450; Graham v Police (2001) 122 A Crim R 152, Senior v Solice (2005) SASC 88
Those decisions refer moreover to what I would describe as more standard allegations of dangerous driving rather than the somewhat unusual set of circumstances in this matter. Crucially there was no similar agreement that only one person was endangered by the driving.
In my view the act of the deceased in getting onto a moving vehicle was inherently dangerous. To adopt and adapt part of the prosecution submissions – he was unrestrained on the boot of a vehicle, the surface was bitumen, the vehicle could at any time have accelerated, changed direction or speed, and he had no way of knowing whether the accused could see him. This to my mind, coupled with the other circumstances and the plain purpose of s.9A, produces the consequence that the deceased is not to be regarded as a matter of law as a member of the public.
My conclusion may well have been otherwise if s.9A was differently worded. I note Gleeson CJ’s further comment in R v S that:
It might be thought unsatisfactory that there is room for doubt in individual cases, but this is the necessary consequence of the use by the legislature of the expression “a manner dangerous to the public” rather than “a manner dangerous to any person”. The expression which the legislature has employed is time honoured, and for decades courts have drawn attention to the possibility of doubtful cases.[8]
[8] See note 1 above
I understand that following the decision in R v S the NSW legislation was amended to incorporate the words “manner dangerous to any person”.
In conclusion, I uphold the defence submission that there is no case to answer. There will be a directed acquittal on the charge. I will hear counsel on the alternative offences..