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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Breuker

Details

AGLC: R v Breuker [2011] SADC 64
Case: [2011] SADC 64
Decision Date: 11 May 2011

CaseChat Overview and Summary

The case of R v Breuker was heard in the District Court of South Australia. The accused, William Michael Breuker, was charged with causing death by dangerous driving, contrary to s.19A (1) of the Criminal Law Consolidation Act 1935. The tragic incident occurred on 28 October 2006, when the accused, a member of a band, drove his car into the netball courts at ETSA Park to unload equipment in preparation for a Christian youth event. Denis Dzaferovic, a fan of the band, was on the boot of the accused's car when he fell off and suffered fatal injuries. The prosecution alleged that the accused's driving was dangerous to the public and caused the death of the deceased.

The court was required to decide two main issues: firstly, whether the accused's driving was dangerous, and secondly, whether the deceased was a member of the public, endangered by the accused's driving. The court considered the evidence and arguments presented by both the prosecution and the defence, as well as relevant case law.

The court found that there was evidence capable of supporting a conviction on the topic of the manner of driving, and therefore, it would not withdraw that matter from the jury. However, the court had difficulties in determining whether the deceased was a member of the public. The court considered the decision of the New South Wales Court of Criminal Appeal in R v S, which was relevant and should be applied due to the similarity of the wording of the relevant sections and the purpose of the legislation in each case. The court concluded that the question of whether the deceased was a member of the public was a question of law, and in this case, the deceased could not be regarded as a member of the public as a matter of law.

Based on the court's reasoning, it was determined that there was no case to answer, and the accused was directed acquitted on the charge of causing death by dangerous driving. The court agreed to hear counsel on alternative offences.

Orders