R v Cain - [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:

This is an appeal by the Director of Public Prosecutions against the acquittal of a defendant following a trial in the District Court.
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 manner dangerous to the public; and
(b)    by that culpable negligence, recklessness or other conduct, causes the death of another,
is guilty of an indictable offence.
Maximum penalty:
(a)     where a motor vehicle or motor vessel was used in the commission of the offence—
(i)for a first offence that is a basic offence—imprisonment for 15 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 10 years or such longer period as the court orders;
(ii)for a first offence that is an aggravated offence or for any subsequent offence—imprisonment for life and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 10 years or such longer period as the court orders;
(b)    where neither a motor vehicle nor motor vessel was used in the commission of the offence—imprisonment for 7 years.
At the commencement of the trial, the defendant pleaded guilty to the offence of driving without due care and attention. [2] That plea was rejected by the Director and the trial proceeded. At the close of the prosecution case, the defendant did not make a submission that there was no case to answer. The defence case was then opened, the defendant gave evidence and the defence case was closed. Counsel were about to commence their closing addresses when the trial Judge raised concerns as to whether in the circumstances he should direct the jury to acquit.
[2] An alternative offence to causing death by dangerous driving.
Having heard submissions, the Judge provided the following ruling:
I rule that the Crown has 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.
[Emphasis added.]
The following interchange then took place:
[Counsel for the Director]: I think that your Honour must now direct them to acquit.
His Honour: That’s the effect of the no-case direction I think. The associate will have to ask ‘do you find the accused not guilty in accordance with the judge’s direction?’.
[Counsel for the Director]: Yes.
The Judge, in giving the direction to the jury, provided an explanation, which included the following:
[T]he Crown have not proved that the bad driving was a conscious and deliberate act.
[Emphasis added.]
In accordance with the Judge’s direction, the jury returned a verdict of not guilty and the defendant was released.
The Director has sought permission to appeal against the decision of the Judge to uphold a submission of no case to answer and to direct an acquittal. The appeal is made pursuant to section 352(1)(ab) of the Criminal Law Consolidation Act. That section provides:
(1)Appeals lie to the Full Court as follows:
…
(ab) if a person is tried on information and acquitted, the Director of Public Prosecutions may, with the permission of the Full Court, appeal against the acquittal on any ground—
(i) if the trial was by judge alone; or
(ii)if the trial was by jury and the judge directed the jury to acquit the person;
In the event that the appeal was successful, the Director drew attention to section 353(2a)(b) of the Act and as a consequence sought that the acquittal be quashed and a new trial ordered.
The Trial
It was the prosecution case that the defendant was driving a Scania semi-trailer on the South Eastern Freeway a little before 8:00 am on 16 February 2010. He was driving in an easterly direction on a straight stretch of the freeway in the left hand of the two lanes for east bound traffic. The weather was fine and the road was dry. There were patches of fog in the hills, but no fog at all on the stretch of road where the incident occurred. Further to the east of the defendant’s course of travel was Ms Carter’s red Hyundai Getz. Ms Carter was sitting in the car waiting for assistance. The vehicle had a flat tyre and she was parked well off the carriageway in the emergency stopping lane. The vehicle’s hazard lights had been activated. The defendant’s vehicle drifted into the emergency stopping lane and without braking, swerving or slowing down, collided with the rear of Ms Carter’s vehicle. The impact was such that Ms Carter sustained severe injuries from which she died at the scene. It was probable that her death was instantaneous.
An examination of the semi-trailer disclosed that there was nothing mechanically wrong with either the prime mover or the trailer that could have caused or contributed to the collision. An examination of Ms Carter’s vehicle disclosed nothing about that vehicle’s mechanical condition that could in any way have contributed to the collision.
Another motorist, Ms Willis, travelling east on the freeway, recounted observations of the defendant’s vehicle. She observed the semi-trailer moving so that it straddled the white line dividing the two lanes for east bound traffic. The witness then observed the semi-trailer move wholly back into the left lane and observed part of the semi-trailer move into the emergency stopping lane. The semi-trailer moved back into the left lane and partly into the right hand lane and then drifted back to the left. The speed of the semi-tailer fluctuated repeatedly. At this point, the witness commenced to overtake the semi-trailer. At about halfway though the overtaking process, she saw the semi-trailer shudder and her vehicle was sprayed with glass and debris. The witness pulled off the road and looked back and was able to observe that the semi-trailer had collided with Ms Carter’s vehicle. The witness, before her overtaking manoeuvre, had a clear view of Ms Carter’s vehicle. There was no difficulty with fog and no other obstruction to view.
Another semi-trailer driver, travelling east on the freeway, observed the defendant’s semi-trailer and made similar observations to those described above. This witness had a clear view not only of the defendant’s semi-trailer, but also of Ms Carter’s vehicle.
Shortly after the collision and while at the scene, the defendant told a witness that he had become disorientated with fog and that that was the explanation for the collision. Shortly after this conversation, the defendant told a police officer “I was just driving and hit her, I don’t know”.
At the close of the prosecution case, unsurprisingly there was no submission that there was no case to answer.
When giving evidence, the defendant described his approach to the scene of the incident. As he travelled around a bend onto the straight stretch leading to where the collision occurred, he claimed that earlier patches of fog that he had observed, dissipated. He said “onto that straight stretch, I came out of the fog very quick into bright sunlight”. He did not observe Ms Carter’s vehicle as he came out of the bend. He gave evidence that he thought that his semi-trailer moved at least in part out of the left lane and that he corrected the position of the semi-trailer. He said that he planned to move into the emergency stopping lane to stop. He said that he felt a bump and heard a noise and brought the semi-trailer to a stop. When he alighted, he saw Ms Carter’s vehicle.
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.
King CJ further observed:[4]
… At common law criminal liability attaches only to acts or omissions which are voluntary, that is to say, the result of an exercise of the will of the accused person. There is a presumption that the legislature, when creating a statutory offence, does not intend to exclude such a basic principle of the criminal law and that presumption can only be rebutted by express words or the clearest of implications. The language of the sections creating the offences of causing death or bodily injury by dangerous driving (Criminal Law Consolidation Act, s 19a) and of driving without due care (Road Traffic Act 1961, s 45) does not exclude the principle requiring a voluntary act or omission as the condition of criminal liability, and there does not appear to be any basis for such an implication. On the contrary, the indictable crimes of causing death or bodily injury by dangerous driving clearly imply some fault on the part of the driver: see R v Gosney [1971] 2 QB 674 at 679. Driving without due care, although a mere traffic offence, has penal consequences and ought also on principle apply only to a voluntary act of driving. The principles laid down in Mayne (supra) and the Duncan (supra) summing up make clear that both the indictable crimes and the traffic offence involve fault in the sense of a departure from an objective standard of driving. Fault necessarily implies that the act constituting the fault is a voluntary act.
These observations of King CJ, with whom the other members of the Court agreed, expose the misunderstanding of the trial Judge.
[4] Kroon v The Queen (1991) 55 SASR 476, 479.
In the present proceeding there was ample evidence on the prosecution case that the driving of the defendant was a willed act. Before coming to discuss that evidence, however, it is relevant to point out that, with respect to this element of an offence, it is settled that the prosecution may rely on a presumption or inference.
In Radford, King CJ observed:[5]
It is a basic principle of the criminal law that a person "is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act": Ryan v. The Queen, per Barwick C.J. at p. 216. If the actions which would otherwise amount to a crime are performed automatically and are not subject to the control and direction of the will, no crime is committed. The general onus which rests upon the prosecution in a criminal case extends, of course, to establishing that the acts said to constitute the crime were performed in consequence of the exercise of the will. The law recognizes a presumption of mental capacity which is sufficient to establish that an accused person acted pursuant to an exercise of his will unless the presumption is displaced by evidence which leaves the jury in doubt as to whether or not the actions were voluntary. The presumption does not affect the legal burden of proof which remains on the prosecution; it supplies, however, the place of evidence as to voluntariness unless displaced by actual evidence raising a reasonable doubt as to voluntariness: Bratty v. Attorney-General for Northern Ireland, per Viscount Kilmuir L.C. at p. 407 and Lord Denning at p. 413.
[Footnotes omitted.]
[5] R v Radford (1985) 42 SASR 266, 272.
In Falconer, Mason CJ, McHugh and Brennan JJ approved the observations of King CJ in Radford and relevantly observed:[6]
In the absence of some contrary evidence, it is presumed — sub silentio, as Barwick C.J. said — that an act done by a person who is apparently conscious is willed or done voluntarily. That presumption accords with, and gives expression to, common experience. Because we assume that a person who is apparently conscious has the capacity to control his actions, we draw an inference that the act is done by choice. Keeping steadily in mind that the concepts of will and voluntariness relate merely to what is done, not to the consequences of what is done, it would be an exceptional case in which a person, apparently conscious, committed an act proscribed as an element in a criminal offence without choosing to do so — or, at the least, without running the risk of doing so. (We need not now consider criminal responsibility for the running of a risk of engaging in proscribed conduct.) The presumption that the acts of a person, apparently conscious, are willed or voluntary is an inference of fact and, as a matter of fact, there must be good grounds for refusing to draw the inference. Generally speaking, grounds for refusing to draw the inference appear only when there are grounds for believing that the actor is unable to control his actions. Although the prosecution bears the ultimate onus of proving beyond reasonable doubt that an act which is an element of an offence charged was a willed act or, at common law, was done voluntarily (Woolmington v. Director of Public Prosecutions; R. v. Mullen), the prosecution may rely on the inference that an act done by an apparently conscious actor is willed or voluntary to discharge that onus unless there are grounds for believing that the accused was unable to control that act.
In Bratty v. Attorney-General (Northern Ireland), Lord Denning said:
whilst the ultimate burden rests on the Crown of proving every element essential in the crime, nevertheless in order to prove that the act was a voluntary act, the Crown is entitled to rely on the presumption that every man has sufficient mental capacity to be responsible for his crimes: and that if the defence wish to displace that presumption they must give some evidence from which the contrary may reasonably be inferred ...
The presumption of mental capacity of which I have spoken is a provisional presumption only. It does not put the legal burden on the defence in the same way as the presumption of sanity does. It leaves the legal burden on the prosecution, but nevertheless, until it is displaced, it enables the prosecution to discharge the ultimate burden of proving that the act was voluntary. Not because the presumption is evidence itself, but because it takes the place of evidence. In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary. The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental incapacity.
His Lordship was not concerned to distinguish between an act and its consequence but the presumption of mental capacity of which he speaks certainly includes a capacity to control actions. …
In my view, this inference should be drawn in the present proceeding.
[6] R v Falconer (1990) 171 CLR 30, 40-41.

In addition, there was a body of evidence supporting the conclusion that the defendant’s act of driving was willed. I refer in particular to the statements by the defendant at the scene referred to above. These statements allow, if not almost compel, the inference to be drawn that the defendant’s act of driving was a conscious, willed and voluntary act. The evidence of the other motorists concerning the defendant’s manner of driving also allows the same inference to be drawn. Finally, the defendant’s plea of guilty to driving without due care, as an uncharged alternative offence, involved the solemn admission of each element of the offence, including that the defendant’s act of driving was willed.[7]
[7] R v Tonks [1963] VR 121, 127-128; Maxwell v The Queen (1996) 184 CLR 501, 508-511.
Without resort to the defendant’s evidence led in the trial, the above matters clearly establish that there was a prosecution case which if accepted by the jury could lead to a conviction of the offence charged. When regard is had to the defendant’s evidence, there are clear admissions that his act of driving the semi-trailer on the occasion in question was a conscious, willed and voluntary act.
There was debate on the hearing of the appeal as to whether a ruling of no case to answer was made or whether the Judge had exercised his jurisdiction to direct a verdict of acquittal. In the circumstances that arose, I do not consider that a no case submission was being advanced. The Judge on his own motion sought assistance from counsel about his concern that there was a possible total absence of proof on an essential element of the charge. Through a misunderstanding of relevant legal principle, the Judge erred in directing the jury to acquit.
In the present trial, when regard is had only to the prosecution case, the evidence of the driving being a willed act was sufficient, if accepted, to satisfy the jury of this element of the offence. The defendant’s account given in Court provided further evidence from which the jury could be satisfied that this element of the offence had been made out. To my mind, the evidence in the trial, including the defendant’s evidence, should have been considered by the Judge before determining whether he should direct the jury to acquit.
In these circumstances, permission to appeal should be granted to the Director, the appeal allowed, the order for acquittal quashed and the matter remitted for retrial.
DAVID J: I would allow the appeal. I would order that the acquittal be quashed and the matter be remitted for retrial. I agree with the reasons of Gray J.
BLUE J: I would allow the appeal. I agree with the reasons of and orders proposed by Gray J.