R v Cain

Case [2011] SASCFC 135

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CAIN

[2011] SASCFC 135

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Blue)

11 November 2011

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - GENERALLY

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - VOLUNTARINESS - GENERALLY

Application for permission to appeal by the Director of Public Prosecutions against the acquittal of a defendant following a trial in the District Court - defendant charged with causing death by dangerous driving - at the commencement of trial, defendant pleaded guilty to offence of driving without due care and attention - plea rejected by the Director and trial proceeded - no case to answer submission not made at close of the prosecution case - where following close of defence case and prior to commencement of closing addresses, the trial Judge raised concerns as to whether in the circumstances he should direct the jury to acquit - following submissions, the Judge ruled that the Crown had not proved "that the bad driving was a willed and conscious act or deliberate and, for that reason, I should direct the jury no case to answer" - the Judge so directed and in accordance with the direction, the jury returned a verdict of not guilty - whether the Judge was in error in directing the acquittal.

Held: permission to appeal granted - appeal allowed - Judge misdirected himself when he posed the question as to whether the bad driving was willed - there was a body of evidence supporting the conclusion that the defendant's act of driving was willed - acquittal quashed and matter remitted for retrial.

Criminal Law Consolidation Act 1935 (SA) s 19A(1), s 352(1)(ab) and s 353(2a)(b), referred to.
Kroon v The Queen (1991) 55 SASR 476; R v Radford (1985) 42 SASR 266; R v Falconer (1990) 171 CLR 30; R v Tonks [1963] VR 121; Maxwell v The Queen (1996) 184 CLR 501, considered.

R v CAIN
[2011] SASCFC 135

Court of Criminal Appeal:       Gray, David and Blue JJ

GRAY J:

  1. This is an appeal by the Director of Public Prosecutions against the acquittal of a defendant following a trial in the District Court. 

  2. Errol David Cain, the defendant and respondent, was charged with the offence of causing death by dangerous driving contrary to section 19A(1) of the Criminal Law Consolidation Act 1935 (SA).[1]  The particulars provided that the defendant on 16 February 2010 at Hahndorf drove a motor vehicle in a manner which was dangerous to the public and thereby caused the death of Linda Meryl Carter.

    [1] Section 19A(1) of the Criminal Law Consolidation Act 1935 (SA) is in the following terms:

    (1)      A person who—

    (a)    drives a vehicle or operates a vessel in a culpably negligent manner, recklessly, or at a speed or in a…

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R v Cain [2011] SASCFC 135
Case
[2011] SASCFC 135
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions applied for permission to appeal against the acquittal of a defendant in the District Court. The defendant had been charged with causing death by dangerous driving. At the commencement of the trial, the defendant pleaded guilty to the lesser offence of driving without due care and attention, but this plea was rejected by the Director, and the trial proceeded on the more serious charge.

The central legal issue before the appellate court was whether the trial judge erred in directing the jury to acquit the defendant on the charge of causing death by dangerous driving. This direction arose after the close of the defence case, when the judge raised concerns about whether the prosecution had proven that the defendant's "bad driving" was a "willed and conscious act or deliberate." The judge ultimately ruled that the Crown had not proven this element and directed a verdict of not guilty.

The appellate court held that the trial judge had misdirected himself by posing the question of whether the bad driving was "willed." The court explained that for offences of dangerous driving causing death, the standard of assessment is objective, focusing on whether the driving was dangerous to the public, irrespective of the driver's subjective intention or appreciation of the danger. While the driving must be a voluntary act, the "badness" or dangerousness of the driving itself is assessed objectively. The court found that there was evidence supporting the conclusion that the defendant's act of driving was voluntary.

Consequently, the appellate court granted permission to appeal, allowed the appeal, quashed the acquittal, and remitted the matter for a retrial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As earlier noted, counsel were about to commence their closing addresses when the Judge informed them of the following:There is a matter on which I would like the assistance of counsel. Is it necessary for the Crown to prove a voluntary act of driving in the manner alleged?In the course of the discussion that followed, the following interchange took place between the Judge and counsel:His Honour: Can you assume that this discussion is on the basis that the jury will accept the evidence of Willis and the other Crown witnesses?[Counsel for the Director]: Yes, but your Honour has asked me what evidence the Crown has, and the movements that Willis observed, in my submission, are evidence of a willed act, not intentional bad driving, but willed driving that is bad objectively.His Honour: Perhaps I should hear from [counsel for the defendant]. Do you wish to say anything about this or am I just wasting everybody’s time?[Counsel for the defendant]: No, your Honour is not, and it occurs to me that this was a matter that might properly have been raised at the no case to answer submission. In terms of the test, yes, the prosecution must prove that the act of driving was voluntary, and by ‘voluntary’ that means willed. His Honour: That is, the bad driving?[Counsel for the defendant]: Yes, the bad driving. …[Emphasis added.] The relevant willed act for the purposes of the establishment of the offence is that the driving was a voluntary and willed act. The question of whether the driving is in the circumstances dangerous driving is a question to be determined objectively having regard to all of the facts. It is not necessary for the prosecution to prove that the bad driving was willed. The submission of the Director as emphasised above is correct. In my view, the Judge misdirected himself when he posed the question as to whether the bad driving was willed. As King CJ observed in Kroon:[3]It is well established that the question whether a vehicle is driven in a manner dangerous to the public for the purpose of the offences created by s 19a of the Criminal Law Consolidation Act 1935 must be answered by reference to an objective standard and irrespective of whether the accused intended to drive dangerously or appreciated that he was doing so: see R v Coventry (1938) 59 CLR 633 at 637-638, 639; McBride v The Queen (1966) 115 CLR 44 at 49-50, 55; Giorgianni v The Queen (1985) 156 CLR 473 at 479, 490, 499; Cornish v The Queen (1988) 48 SASR 520. The character of the driving is tested not by reference to whether the danger to the public involved in the driving was appreciated by the accused but to whether he ought to have appreciated the danger; or, to put it another way, whether a reasonable person in the situation of the accused would have appreciated the danger: see R v Mayne (1975) 11 SASR 583, per Bray CJ at 585; R v Duncan (1953) 11 SASR 592 at 594.Although the standard to be applied is objective in the sense defined above, it is applicable only to a voluntary act of driving. It is clear on the authorities, and on principle, that to constitute the offence, there must be a voluntary act of driving: see Coventry (supra) (at 638); R v Thompson (1975) 11 SASR 217 at 220, per Bray CJ; Giorgianni (supra) (at 499). Where the driving or apparent driving is deprived of its voluntary character by, for example, automatism or unconsciousness, the offence is not committed: see Hill v Baxter [1958] 1 QB 277; Cooper v McKenna; Ex parte Cooper [1960] Qd R 406 at 415-419; R v Carter [1959] VR 105 at 112-113.[3] Kroon v The Queen (1991) 55 SASR 476, 477-478.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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