R v Dawood No. Sccrm-02-62, Sccrm-02-94

R v DAWOOD
[2002] SASC 346
Court of Criminal Appeal: Perry, Williams and Gray JJ

PERRY J. I have had the benefit of perusing the draft reasons for judgment of Gray J. I am indebted to him for his exposition of the circumstances surrounding the road accident which has given rise to the charge against the appellant. I will enlarge on his summary of the relevant facts only to the extent necessary to make these reasons intelligible.
The Crown called two witnesses who were said to have made observations of the vehicle driven by the appellant shortly before the accident. (I exclude for this purpose a third witness, Gregory Dunn, who saw only a puff of dust before coming on the wrecked car which had been driven by the appellant.)
The first of these was John Richardson, who lived on the eastern side of Mt Pleasant Road, which is the road upon which the accident occurred. A few minutes before the accident, he was standing outside of his home in a position from which he had a view of part of the roadway, a strip of about 600 metres. He heard the sound of a vehicle travelling south on the roadway. When it came into view, although he did not see it for long, he estimated that it was travelling in excess of the speed limit, or at least the limit set by a speed advisory sign which was 95 kilometres per hour. He thought that it was exceeding that speed by a “considerable amount”. He thought that the vehicle was a dark colour, either very dark blue or black, and that it was either a Ford sedan or a Holden Commodore.
Mr Richardson was a member of the local Country Fire Service. Shortly after he saw the vehicle, his wife passed on a phone call asking him to attend a road accident which turned out to be the accident in question. When he arrived at the accident scene, which was “a couple of minutes” drive from his house, he saw the damaged car which had been driven by the appellant. He identified it as the car which had passed him shortly beforehand, in the sense that it answered the general description of that car, and he thought that it was the same vehicle.
The other witness who was said to have observed the appellant’s vehicle shortly before the accident was Peter Gaston, who lived between Angaston and Eden Valley. On the afternoon in question, he dropped his partner off at work in the township of Eden Valley. In driving there, he passed along the Mt Pleasant Road, during the course of which he saw a vehicle parked on Mt Pleasant Road. He recognised it as a Holden Commodore, black in colour, and that it appeared new. He saw at that stage that a male person was sitting in the driver’ seat.
When he returned, driving in the opposite direction after having dropped his partner off at her work, he saw the same car in the same position. At that stage, he thought he observed a female in the passenger seat. The car was still stationary as he passed it, but when he looked in his rear vision mirror shortly after doing so, he saw the car moving off. He saw that there were rocks and dirt being thrown up behind the rear wheel of the car, and at the same time he thought that it was making a very loud noise consistent with it being revved up. His description in his evidence continued as follows:
“A.It took off, well, the gravel coming behind it, then it hit the bitumen and swayed from left to right as it went up the road.
Q.So it left the dirt verge and went onto the bitumen.
A.That’s correct.
Q.You’ve told us that it swayed from left to right; is that correct.
A.Yes.
Q.How many times did you see it sway from left to right.
A.Four to five times.
Q.What part of the car was swaying from left to right once the car was on the bitumen.
A.The rear end.
Q.How much swaying was there in the rear end of the car that you observed as it drove away.
A.It was quite a bit, actually. You’ve got your lane, it was sort of off the side of that on about the other side.
...........
Q.What did you see the rear of the car do in relation to the line or lines running down the middle of the road.
A.It was going onto the other side of the road.
His Honour:
Q.So the rear was going onto the other side of the road.
A.Yes.
Q.And then back.
A.Yes.”
Mr Gaston formed the impression that the driver had dark hair. This was consistent with the appearance of the appellant’s hair.
Later that evening, when Mr Gaston had learned that there had been a collision on the road, at about 10.30 pm he visited the scene of the collision. His evidence was that he recognised the damaged car which the appellant had been driving as the car which he had seen on the road earlier before.
There was a minor difference in the estimates of the time at which each of the two witnesses said they had observed the vehicle, but that clearly was a matter for the jury and is of no great moment. However, before the commencement of the trial, counsel for the appellant raised an objection as to the admissibility of the evidence of both of the witnesses, placing much stress on the minor differences between them as to the estimates of time, and on the ground that the identification of the vehicle as that which was involved in the accident was unreliable.
The learned trial judge was inclined to exclude Mr Richardson’s evidence but to allow Mr Gaston’s, whereupon counsel for the appellant indicated that if Mr Gaston’s evidence was to be admitted, he would prefer to have Mr Richardson called as well. In the result, both were called at the trial, and gave evidence the substance of which I have summarised.
The Crown called an engineer, Graham England, who gave two estimates of the speed of the vehicle. One was based on a computer-assisted reconstruction which gave a range, allowing for margin of error, of 147 to 155 kilometres per hour. Using a manual method, without computer assistance, he arrived at a figure of 135 to 141 kilometres per hour, both speeds being before the application of the handbrake.
During the course of his evidence in chief the appellant said that just before the accident the deceased grabbed him by the arm. The relevant passage of evidence is as follows:
“Q.As you approached the location of the accident, did something happen inside the car.
A.The only thing that I remember that happened on that day prior to the accident in the car was when Colleen grabbed my arm and she shouted something at me, whether it was ‘Look out’ or “Watch out’, I can’t remember the exact words she said. After that the car just lost control completely.
Q.You say she grabbed you on the arm.
A.That’s right.
Q.Just indicate please where she grabbed you.
A.It was around this area here (INDICATES).
Q.You are indicating the left rib portion of the forearm.
A.That’s right. As I was driving along with both hands on the steering wheel.
Q.Did you see anything that may have been on the road.
A.I couldn’t see anything that’s obvious. There was no cars, no pedestrians, no animals, I couldn’t see anything obvious on the road.
Q.What is your perception of how quickly all of this happened.
A.It was very quick. After that all I recall is waking up in hospital, the Royal Adelaide.
Q.We have heard evidence that the handbrake of the car was applied at some stage prior to the collision. Did you apply the handbrake.
A.No, I did not.
Q.Did you see Colleen apply the handbrake.
A.No, I didn’t.
Q.Do you know anything at all about how the handbrake came to be on.
A.I wish I do but I don’t.
Q.The handbrake on that car, whereabouts was it positioned.
A.Just on left-hand side of the driver’s seat.
Q.Was that accessible from the passenger seat.
A.Very easily, yes.
Q.We have heard evidence that the car, after it commenced to have the rear wheels locked, had steering input applied to the right. Do you remember hearing that evidence.
A.Yes.
Q.Do you have any recollection of steering to the right.
A.I don’t remember what happened after Colleen grabbed my arm.
Q.After the accident what’s your first recollection.
A.I woke up looking at the ceiling.”
Elsewhere he said that as far as he was aware, he was driving “in the speed limit” which he understood to be 110 kilometres per hour.
It is convenient at this stage to deal with the grounds of appeal. I will deal with them in the order in which they are set out in the notice of appeal.
(A) treatment of evidence of the witnesses gaston and richardson
The appellant pleads in this ground that the learned trial judge erred in refusing to exclude the evidence of these two witnesses.
This relates to the refusal by the learned trial judge to accede to arguments which were put on a voir dire hearing ahead of the trial that the evidence was inadmissible.
On the hearing of the appeal, Mr Barrett QC, who appeared for the appellant, did not pursue that argument. Rather, he submitted that a “... more effective caution should have been given to the jury” about their evidence.
With respect to Mr Barrett QC, there is nothing in this criticism. The learned trial judge reminded the jury with respect to Mr Richardson’s evidence “... you will bear in mind the paucity of time for which he saw the vehicle and the difficulties of estimating speed in those circumstances”.
As for Mr Gaston’s evidence, the learned trial judge reminded the jury of the criticisms made of his evidence by counsel for the appellant which related to the discrepancy between the appellant’s evidence that he did not stop his car, and Mr Gaston’s evidence that he saw it while it was stopped and before it drove off again, and the uncertainties attendant upon identification of it.
In my opinion, the jury was given adequate assistance by the learned trial judge in approaching the evidence of these two witnesses.
(b) Cross-examination of the appellant as to his engagement of an expert witness, Mr Hall, who was not called
There are four grounds of appeal relating to this topic. They are as follows:
“2.The learned trial judge erred in allowing counsel for the prosecution to cross-examine the accused as to instructions to his legal advisers to have an engineer review the work of the Crown witness England.
3.The learned trial judge erred in refusing to allow a mistrial having subsequently concluded that the cross-examination referred to in Ground 2 was impermissible.
4.The learned trial judge erred in directing the jury to ignore the cross-examination referred to in Ground 2 hereof in the light of counsel for the accused requesting that no such direction be given.
5.His Honour erred in the manner in which he directed the jury in respect of the evidence on the subject of Ground 2 in that the directions highlighted the fact that another expert had apparently validated England’s work and, further, gave the impression to the jury that it was permissible for counsel for the prosecution to cross-examine in the manner in which he did.”
These grounds of appeal arise out of a passage in the cross-examination of the appellant which is as follows:
“Q.You’ve been aware, for some time, of the estimate of speed based upon the computer simulation given by Mr England, have you not.
A.Sorry, say that again?
Q.You’ve been aware, for many, many months, of the estimate of speed based upon the computer simulation that Mr England has told us about in court.
A.That’s correct, yes.
Q.Have you instructed anyone, on your behalf -
OBJECTION: MR BOUCAUT OBJECTS
QUESTION ALLOWED
Q.Have you instructed anyone, on your behalf, to review the work Mr England has done on the computer simulation.
A.Yes.
Q.Whom is it that you have instructed to review that.
OBJECTION: MR BOUCAUT OBJECTS
QUESTION ALLOWED
A.It was my solicitor.
Q.Is it your understanding your solicitor has contacted an expert, other than Mr England, with a view to looking at the work Mr England had done in the computer simulation.
A.Yes.
Q.Do you know the name of the person that your solicitor contacted for the purpose of that review.
OBJECTION: MR BOUCAUT OBJECTS
MR BOUCAUT:         Your Honour will assume this is a running objection?
HIS HONOUR:           I’m taking it question by question.
MR BOUCAUT:         My objection applies across the board. I don’t want to keep getting up and saying ‘I object’, because that would be tiresome.
HIS HONOUR:           I’m conscious of the Jones and Dunkel direction we’re getting at, I suppose, or whatever.
XXN
Q.Do you know the name of the person you instructed to have your solicitors to have review the material.
A.Yes. I’m not sure of the name, I think it’s Mr Hall or something.
Q.Mr Hall.
A.That’s right.
Q.     You understand him to be an expert in collision reconstruction.
A.I don’t know what his expertise are.
Q.Is it your understanding he’s reviewed the computer simulation work that Mr England has done.
A.That’s right.
Q.Have you also instructed your solicitors to have anyone review the manual calculations that Mr England has told us about in this court.
A.I believe that’s been done, yes.
Q.Again, by Mr Hall.
A.I believe so.
Q.The same person who reviewed the computer simulation material.
A.That’s right.”
Before the trial had proceeded much further, the learned trial judge expressed the view that, on reflection, he thought that he was wrong to have allowed the evidence in. He stated, however, that he thought the mistake could be cured by a direction. He declined to accede to a request from defence counsel to direct a mistrial.
At the conclusion of the evidence and before the addresses of counsel, the learned trial judge addressed the jury in the following terms:
“There’s just one matter that I wish to direct you about before Mr Kimber addresses you first. This is a direction I wish to give you straightaway. I’m going to do a very unusual thing for a judge and that is admit to a mistake. It’s not often you will hear this, so treasure this moment.
Ladies and gentlemen, during the course of the cross-examination of the defendant, the last two or three questions by Mr Kimber, you will remember when he said ‘Did you instruct your solicitor to give this material to an expert?’. Now, on reflection, I do not think I should have allowed those questions. There’s a debate about that, about why I shouldn’t have allowed those questions, even though they were properly intentioned by Mr Kimber, is that you can’t do anything with the answers.
Let me explain this in this way: the onus of proof is upon the Crown. If the defence don’t call a witness, there can be no inference drawn adverse to the defendant because of that. You will decide the case on the evidence that is before this court. There might be all sorts of reasons why people might not call other people, and we shouldn’t even begin to conjecture about it and would be most unfair. Ignore that fact as to what might have happened.
Also, you’ve heard Mr England’s evidence. The fact that no evidence has been called by the defence on that topic doesn’t in any way elevate his evidence. You still have to assess that evidence as you assess it and the fact that there’s no other evidence doesn’t matter. You would still carefully consider that evidence and it’s for you to say, as I will explain during my summing up, whether you accept it or you do not accept it.
So those questions of not calling a witness or whether this material was shown to anybody, are utterly irrelevant, just ignore them and you draw no inferences from them at all.”
With respect to the learned trial judge, in my view, the evidence was admissible and may well have warranted a Jones v Dunkel direction.[1]
[1] (1959) 101 CLR 298.
Be that as it may, in my view, none of the grounds of appeal associated with this topic have been made out.
If the learned trial judge was in error in allowing the cross-examination, the matter was adequately addressed in the direction which he gave which I have just quoted. I think it better that he gave that direction rather than accede to the request of counsel that no such direction be given.
Furthermore, there was no obligation upon the learned trial judge to direct a mistrial in those circumstances.
(c) Direction on causation
The appellant’s complaint as to this aspect of the matter finds expression in the following two grounds of appeal:
“6.The learned trial judge erred in law in directing the jury on the issue of causation.
7.The learned trial judge erred in law in directing the jury to the effect that they had to consider whether the hand brake factor ‘put the speed and the manner dangerous into a matter of insignificance’.
The terms of the direction given by the trial judge on the topic of causation are set out in the judgment of Gray J. For convenience, I repeat the part of the direction which bears directly on the question now at issue:
“I direct you that if you find it as a reasonable possibility that the handbrake was not applied by the defendant, but was applied by the deceased, and if you find it as a reasonable possibility that this accident would not have happened if the handbrake had not been applied, and that’s a matter for you, then it is open for you to find that the significance of speed and dangerous driving may be overwhelmed by the occurrence of the handbrake being applied. If that is a reasonable possibility, it may be open to you to say that the speed and the dangerous driving may not have been a substantial cause of this accident; in other words, if that factor was overtaken by the question of the handbrake.
If that was so, your verdict will be not guilty as charged, but guilty of driving in a manner dangerous to the public. However, that direction, of course, depends on what you view you take of the evidence. That’s your decision and not mine. What you’ll have to decide is whether it has been proved beyond reasonable doubt that the speed or the dangerous driving, which was speed, was a substantial cause of the accident, and you will have to consider what role the handbrake being put on played in all of that.
If it’s reasonably possible that the deceased put on the handbrake, then you will have to consider whether that factor really puts the speed and the manner dangerous into a matter of insignificance, or whether the speed and the manner dangerous is still a substantial cause of the accident or not. I hope that’s clear, ladies and gentlemen. That’s an issue you will have to decide.” (emphasis added)
In using the expression “substantial cause”, the trial judge correctly directed the jury as to the basic question of causation, that is to say, whether or not the manner of driving of the accused was a substantial cause of the death.[2]
[2] See Cornish (1988) 48 SASR 520, Mayne (1975) 11 SASR 583 and Leaf-Milham (1987) 47 SASR 499.
I agree with Gray J that where the learned trial judge first uses that expression in the passage cited, his repeated use of the word “may” had the potential to be confusing. But looking at this part of the summing up as a whole, in my view, the jury was correctly directed to consider on the one hand the consequences of the application of the handbrake, if it was possible that the deceased was for responsible for applying it, and on the other, the question whether or not, notwithstanding that, the manner of driving by the deceased remained a substantial cause of the accident.
Consistently with the observations which fell from the Judges of the High Court in Royall, I do not think that it was incumbent upon the trial judge in the particular circumstances of this case to speak in terms of “causation” or “chain of causation”, or of “foreseeability”.

If I was to be wrong in that view, I would nonetheless apply the proviso to s 353(1) of the Criminal Law Consolidation Act 1935, in that in my view, there could not have been any substantial miscarriage of justice.
Both the deceased and the appellant had been drinking and were carrying a high blood alcohol concentration. There was evidence of erratic driving by the appellant before the accident. His conduct in entering a bend at in excess of 100 kilometres per hour while affected by liquor must necessarily be characterised as dangerous driving.
The evidence that the deceased grabbed the appellant’s arm is significant in this connection. Such action on her part could only sensibly be taken to have been an expression of fear or panic on her part, occasioned by her perception of his manner of driving. Her action in doing so speaks for itself.
That she may then have applied the handbrake is a predictable reaction by someone perhaps themselves affected to a degree by liquor, in what she perceived to be a situation of danger.
In those circumstances, in my view, even if the deceased applied the handbrake, and even if that should be regarded as the immediate cause of the accident happening, on no reasonable view of the case could it be said that the manner of driving of the deceased ceased to be a substantial cause of her death. Neither do I think that in such circumstances it would have been reasonably open to the jury to find that the reaction of the deceased in applying the handbrake would in those circumstances be unforeseeable.
I would dismiss the appeal against the conviction.
(c) appeal against penalty
My views on the question whether the learned trial judge erred in failing to suspend the sentence of imprisonment have vacillated since the hearing of the appeal. I regard the case on this issue as borderline.
However, in view of the fact that the other members of the Court would not interfere with the sentence, in all the circumstances, I would not be prepared to dissent from that course.
I would dismiss the appeals against conviction and sentence.
WILLIAMS J. In my opinion the appeal against conviction should be dismissed for the reasons given by Perry J; the appeal against sentence should be dismissed for the reasons given by Gray J.
Introduction
Gray J This is an appeal against conviction and sentence.
The appellant Hassan Mohammad Dawood was charged with causing death by dangerous driving.[3] On 8 February 2002 he was convicted by jury verdict following a trial in the District Court. He was sentenced to 18 months imprisonment with a non parole period of nine months. The sentencing judge declined to suspend the term of imprisonment. The appellant’s drivers licence was suspended for a period of seven years.
[3] “ Statement of Offence
Causing Death by Dangerous Driving. (Section 19A(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Hassan Mohammad Dawood on the 27th day of November, 1999 at Eden Valley, drove a motor vehicle in a manner and at a speed which was dangerous to the public and thereby caused the death of Colleen Judith Levy.”
The incident giving rise to the charge occurred on 27 November 1999 at Eden Valley. At this time the appellant was aged 36 years and married. He worked with the deceased Colleen Levy. They were both having difficulty with their marriages and had formed an intimate relationship in or about mid 1998.
On Friday 26 November 1999 the appellant and Ms Levy drove to the Barossa Valley for a weekend away. They took a recent model Holden Commodore owned by the appellant’s employer. Both had previously driven the vehicle. They stayed in bed and breakfast accommodation at Birdwood.
On Saturday 27 November 1999 the appellant and Ms Levy shared a glass of champagne before breakfast. Later they drove to a restaurant near Angaston arriving at about 2.30 pm. They ate lunch and shared a bottle of wine. It is possible that the appellant consumed a pre-lunch alcoholic beverage. During lunch the appellant and Ms Levy discussed their relationship. The appellant was unable to recall whether they had liqueurs with their coffee after lunch. At some time before 6.00 pm they left the restaurant with a view to visiting a winery. They travelled along a road between Angaston and Eden Valley. The appellant was driving. These facts were not disputed.
The Crown Case
It was the Crown case that the appellant lost control of the vehicle on a bend. It left the road and collided with a tree. Ms Levy suffered extensive injuries and died at the scene.
At the time of the loss of control the appellant had a blood alcohol reading of approximately 0.112 grams of alcohol per 100 millilitres of blood. The vehicle’s speed was said to have been between 135 and 155 kilometres per hour. The Crown submitted that the appellant’s conduct in driving at speed with alcohol impaired faculties amounted to driving at a speed and in a manner that was dangerous.
Expert engineers gave evidence. Their opinions formed the basis of the Crown allegation of excessive speed. The evidence also demonstrated that the vehicle’s handbrake had been applied shortly before impact.
The Crown led evidence from a forensic pathologist as to the effect of the appellant’s blood alcohol reading. That evidence was summarised by the judge as follows:
“Ladies and gentlemen, the next expert witness was Dr James, who, as you heard, was a very experienced forensic pathologist, and he gave you general expert evidence about the effects of alcohol on people and especially upon their ability to drive.
Firstly he told you that, in relation to the accused, if a sample of his blood was taken at 8.15 p.m. and that sample was shown to be .112, and his last known drink was around about 5 to 5.30 p.m., he was of the opinion that his blood alcohol reading at the time of the accident would have been something about the same. Sometimes it varies, but he says on this occasion it would have been about the same.
He was then asked questions about the possible impact of the effect of alcohol on a person’s skills which are needed for driving. Dr James was at pains to emphasise that his opinion on this topic was only general in nature and the effects of alcohol varied from person to person. You heard his evidence of the various effects on the various facilities of a person and the impairments of the various abilities of persons the certain readings have. I won’t repeat that evidence. However, as I have said, he was at pains to emphasise that this is general evidence, that it doesn’t apply to everybody in the same way, that it varies from person to person, and he gave his opinion that because a person had reached a level of .11 or depending on the subjective condition of that person himself.”
Two witnesses gave evidence of claimed observations of the vehicle driven by the appellant shortly prior to the collision. One witness saw the vehicle driving towards the scene at high speed. The other saw the vehicle in a stationery position on the side of the road and then being driven in an erratic manner. This was said to be consistent with the driver being under the influence of alcohol.
It was alleged by the Crown that as the vehicle approached a right hand bend the appellant applied the handbrake. This had an anticlockwise effect on the vehicle’s direction of travel. The appellant oversteered to the right and the vehicle left the road and collided with the tree. The Crown accepted that the application of the handbrake was the direct and immediate cause of the loss of control.
It was the Crown case that the substantial operating causes of the vehicle leaving the road and of Ms Levy’s death were the speed at which it was travelling and the impairment of the appellant’s faculties. It was said that the application of the handbrake by the appellant was a dangerous act.
The Crown conceded that it would be open to the jury to conclude that there was a reasonable possibility that the handbrake had been applied by Ms Levy. However it was said that if that occurred then there was no break in the chain of causation. The speed and impaired faculties of the appellant remained the substantial cause of death. It was said that if Ms Levy had applied the handbrake then she did so in a state of fear for her safety by reason of the appellant’s driving. It was said that her reaction was a natural consequence of the appellant’s driving. It was said that Ms Levy had a well grounded and reasonable fear and that her reaction was not disproportionate.
Defence Case
The appellant denied the charge. It was the defence case that the appellant lost control of the vehicle when Ms Levy applied the handbrake. It was pointed out that Ms Levy had a blood alcohol reading of 0.109 grams of alcohol per 100 millilitres of blood. The appellant said that he was driving at 110 kilometres per hour as they approached the bend. He claimed that he was not affected by the alcohol that he had consumed. He said that as they approached the bend he heard Ms Levy call out something like “Look out” or “Watch out” and felt her grab his arm. The next thing he recalled was waking in hospital. The appellant was unaware that the handbrake had been applied. He denied applying the handbrake. The appellant was the only defence witness.
It was the defence case that the application of the handbrake by Ms Levy was a dangerous act which caused the vehicle to go out of control. It was said that even if the appellant was driving at a speed and in a manner that was dangerous he did not cause Ms Levy’s death. There was an intervening cause, a novus actus interveniens, which interrupted the causal chain. It was said that Ms Levy’s reaction was wholly unreasonable and disproportionate. It was not a natural consequence for a passenger to apply the handbrake of a vehicle as it was about to negotiate a bend in the road. The application of the handbrake was a function usually performed only by the driver.
The Summing Up
Having given general directions in regard to the elements of the charge the judge returned to the issue of causation and said:
“There, of course, is a factual complication in this case because you’ve heard evidence, and I’ll summarise it in a moment when I turn to the facts, you’ve heard evidence that the skid marks on the bitumen road were caused by an application of the handbrake, and not the footbrakes. You have also heard evidence that the putting on of the handbrake on a motor vehicle, even when it is travelling at a moderate speed, has a fairly significant effect. You remember that evidence. You heard the defendant, both in his record of interview and in his evidence in this court, deny that he, himself, pulled on the handbrake. You might think, ladies and gentlemen, there is also clear evidence that if the handbrake was not applied, the accident would not have happened in the way that it did happen; namely, the vehicle colliding with the tree.
Therefore, in considering the third element, if you find it proved beyond reasonable doubt that the accused was driving in a manner dangerous to the public, and if you find it proved that he, himself, applied the handbrake, then it would be open for you to find that in applying the handbrake while driving dangerously, that was clearly a substantial cause of the accident which caused the death; namely, his action in applying the handbrake.
However, there is an alternative view on the evidence. If you find that even as a reasonable possibility the deceased applied the handbrake, then I give you these directions. I emphasise that this is only if you find that as a reasonable possibility, because the onus of proof is upon the Crown. I direct you that if you find it as a reasonable possibility that the handbrake was not applied by the defendant, but was applied by the deceased, and if you find it as a reasonable possibility that this accident would not have happened if the handbrake had not been applied, and that’s a matter for you, then it is open for you to find that the significance of speed and dangerous driving may be overwhelmed by the occurrence of the handbrake being applied. If that is a reasonable possibility, it may be open to you to say that the speed and the dangerous driving may not have been a substantial cause of this accident; in other words, if that factor was overtaken by the question of the handbrake.
If that was so, your verdict will be not guilty as charged, but guilty of driving in a manner dangerous to the public. However, that direction, of course, depends on what you view you take of the evidence. That’s your decision and not mine. What you’ll have to decide is whether it has been proved beyond reasonable doubt that the speed or the dangerous driving, which was speed, was a substantial cause of the accident, and you will have to consider what role the handbrake being put on played in all of that.
If it’s reasonably possible that the deceased put on the handbrake, then you will have to consider whether that factor really puts the speed and the manner dangerous into a matter of insignificance, or whether the speed and the manner dangerous is still a substantial cause of the accident or not. I hope that’s clear, ladies and gentlemen. That’s an issue you will have to decide.”
On appeal counsel for the appellant submitted that the judge correctly identified for the jury’s consideration the reasonable possibility that Ms Levy had applied the handbrake. The judge also correctly observed that if the appellant’s conduct ceased to be a substantial cause of the death then the appellant should be acquitted of the charge of causing death by dangerous driving.
It was said that the judge’s direction included the following propositions:
-that it was a reasonable possibility that the collision would not have happened if the handbrake had not been applied
-that the application of the handbrake may have overwhelmed the appellant’s manner of driving
-that if the application of the handbrake overwhelmed the appellant’s conduct that “it may be open to you” to say that the appellant’s manner of driving “may not” have been a substantial cause of the death.
Counsel submitted that this direction failed to address the issue of an intervening cause or a novus actus interveniens. If the jury considered that it was a reasonable possibility that Ms Levy applied the handbrake and that the causal chain was broken then subject to the special rules applying in fear, self preservation and escape cases the appellant was entitled to a verdict of acquittal. It was said that this possibility was not left to the jury. As causation was a critical issue it was said that the judge should have given the jury specific assistance. To leave them without assistance was said to be an error.
Counsel for the appellant further complained that the direction with respect to causation was flawed. As earlier observed the judge correctly directed the jury that they may conclude that there was at least a reasonable possibility that Ms Levy had applied the handbrake. However it was said that once this circumstance was a reasonable possibility the judge was required to give a further direction to assist the jury evaluate the significance of Ms Levy’s conduct. It was contended that in Royall v The Queen[4] the High Court concluded that a special direction was necessary in cases like the present. It was acknowledged that there were differences as to the nature of the warning required but it was said that the court was unanimous about the need for a special warning or direction.
[4] (1991) 172 CLR 378
Consideration of the Issue
In Royall the victim died in an apparent fall from a sixth floor flat where she and the accused had been living for several months in a de facto relationship. In the days immediately preceding the incident neighbours had overheard the victim and the accused arguing. When the victim’s naked body was discovered on the street her hair was wet. An examination of the flat revealed that there had been forced entry into the bathroom and signs of a struggle. The victim’s blood was found in the bathroom and throughout the flat.
The Crown advanced a number of explanations for the death. One was that the accused had pushed or forced the victim out of the window. Another was that the accused had attacked the victim in the bathroom causing her to fall and him to retreat and the third was that the victim had jumped from the window as a means of escape from a well founded fear that she would be subject to life threatening violence if she remained in the bathroom.
The accused made an unsworn statement in which he said that the victim was an amphetamine user who also suffered from epilepsy. He explained that she was having a shower in the bathroom when he heard a sudden thump on the wall. He became concerned for her safety and forcibly entered the bathroom. At that time the victim was already jumping out of the window.
In Royall the trial judge gave a specific direction concerning the victim’s conduct:
“The third allegation is that [the victim] at the time immediately before her fall from the window, had a well-founded and reasonable apprehension that if she remained in the bathroom she would be subjected to such further violence as would endanger her life and if in those circumstances she sought to escape by jumping out the window thinking that by so doing she had a better chance of saving her life than by staying inside, and was killed in that fall, the causal link between the acts of the accused and the death are established.”
The accused was convicted of murder. An appeal to the High Court challenged the adequacy of the direction concerning causation. The members of the court differed in their views. The question of the appropriate direction to be given in cases of escape or self preservation was addressed.
Mason CJ[5] considered that the case was governed by rules especially adapted for situations in which a person threatened with violence is injured or killed while attempting to escape or take other action in the interests of self preservation:
“It seems to me that, in the context of causation, the principle is best formulated as follows: where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused's conduct. Whether it is necessary for the prosecution to establish also that the mode of escape adopted is a natural consequence of the victim's apprehension for his or her safety does not arise here for the deceased had no means of escape other than jumping out of the window in the situation posited. The question could arise only in circumstances where the victim does something irrational or unexpected, in which event it might be more difficult to establish that the injury sustained was a consequence of the accused's act and not the product of the victim's voluntary act. In such a situation much may turn on the nature and extent of the well-founded apprehension of the victim; and it is to be expected that persons fearful for their own safety forced to react on the spur of the moment will not always make a sound or sensible judgment and may act irrationally.”
[5] Royall (supra) at 389-390
Brennan J[6] applied a dual test of proportionality of the victim’s conduct and reasonable foreseeability by the accused:
“The basic proposition relating to causation in homicide is that an accused's conduct, whether by act or omission, must contribute significantly to the death of the victim: ... It need not be the sole, direct or immediate cause of the death. However, when the death is not caused directly by the conduct of the accused but by something done by the victim or by a third person in response to the conduct of the accused, there is a question whether the chain of causation has been broken. If the response is a reflex or automatic reaction to the conduct of the accused, the chain of causation is not broken. It is also well established that the death may be held to have been caused by an accused's conduct though the direct or immediate cause of death is a final fatal step taken by the victim where that step is taken in an attempt to preserve himself or herself from physical harm which unlawful conduct on the part of the accused has induced the victim to fear, provided the victim's attempt at self-preservation is reasonable having regard to the nature of the accused's conduct and the fear it was likely to have induced (or, as I would prefer, provided the attempt is proportionate to that conduct and the fear it was likely to have induced): ... In such a case, the taking of the final fatal step is not a novus actus interveniens breaking the chain of causation: ... On the other hand, where the victim's attempt at self-preservation is not reasonable (or proportionate), the chain of causation is broken and the victim's death is not treated as having been caused by the accused's conduct. Subject to a qualification presently to be mentioned, the question whether the chain of causation is broken by the victim's taking of the final fatal step is a question of fact to be answered by reference to the objective circumstances. Nevertheless, an accused cannot be held criminally responsible for a death that has been caused in fact by his conduct if the final fatal step taken by the victim was neither foreseen nor reasonably foreseeable. Foresight or reasonable foreseeability marks the limit of the consequences of conduct for which an accused may be held criminally responsible.
...
The question whether an accused whose conduct has led to a death is criminally responsible for the death when the death has been caused by a final fatal step taken by the victim thus depends on the reasonableness (or proportionality) of the victim's attempt at self-preservation and the accused's foresight, or the reasonable foreseeability, of the possibility that a final fatal step might be taken by the victim in response to the accused's conduct.”
[6] Royall (supra) at 398, 399

Deane and Dawson JJ[7] adopted a position very close to that of Mason CJ:
“In other cases it may be appropriate to point out that the causal chain must not be broken by some intervening event which operates to relieve the accused of responsibility, but such a direction would ordinarily be better put by reference to the actual facts of the case than couched in abstract terms.
If, in a case of fright or self-preservation, the victim over-reacts to the threatening acts or words of the accused, that may be sufficient to break the chain of causation. That proposition is sometimes put in terms of reasonable foreseeability: when the act done in self-preservation is "unreasonable" it negatives causal connexion: ... On occasions foreseeability may play some part in a jury's inquiry into the cause of death but, in directing a jury, it is, for practical purposes, desirable to keep causation and intent separate as far as possible and to avoid the introduction of questions of foreseeability in relation to causation. It is, we think, going too far to say, as the Full Court of the Supreme Court of South Australia did in Reg v Hallett ... that "[f]oresight by the accused of the possibility or probability of death or grievous bodily harm from his act, though very relevant to the question of malice aforethought, has nothing to do with the question of causation", but in a fright or self-preservation case, where the question is whether the victim's reaction was an over-reaction and therefore a coincidence, the matter is best dealt with in terms other than those of foreseeability. A direction that the victim's fear or apprehension must be well-founded or well-grounded or reasonable in all the circumstances will adequately raise the issue, as will a direction that the act of escape or self-preservation must be the natural consequence of the accused's behaviour. It is for the jury to decide those questions: ... Although it would not necessarily be wrong to do so, there is generally no need to elaborate the requirement of causation which is implicit in these directions, other than to make clear that the prosecution must establish that the accused caused the act of escape or self-preservation upon which the prosecution relies.”
[7] Royall (supra) 412, 413
Toohey and Gaudron JJ[8] observed:
[8] Royall (supra) 424, 425
“The question whether an act of the applicant caused the death was one to be answered as a question of objective fact. It did not depend upon the applicant's appreciation of the consequences of any act of his. The Full Court of the Supreme Court of South Australia observed in Reg v Hallett ...
‘Foresight by the accused of the possibility or probability of death or grievous bodily harm from his act, though very relevant to the question of malice aforethought, has nothing to do with the question of causation.’
Of this observation, Howard's Criminal Law, ... comments:
‘It may well be argued that attempting to divorce causal responsibility from foreseeability of risk is spurious. Everyday attributions of causal responsibility are immediately affected by foreseeability and estimates of risk; probability is a guide to life. ... The position expressed in Hallett is also difficult to reconcile with the fright or self-preservation cases where the long-standing rule is that D is not causally responsible where V's death is attributable to an unreasonable reaction on the part of V or some third party.’
Conceding the force of these comments, we are nevertheless of the opinion that the members of a jury are less likely to be confused if foreseeability is not introduced into the direction on causation and if the jury are told that whether an act of the accused caused the death is ‘a question to be determined by them applying their common sense to the facts as they find them’... Consistent with this approach, the jury may be told that, if the victim's reaction to the act of the accused said to have caused the death was quite disproportionate to the act or was unreasonable, the chain of causation was broken.”
McHugh J[9] adopted a reasonable foreseeability test:
“In most criminal cases, the issue of causation is not controversial. If an accused's act or omission is causally linked with the event or occurrence, it is always only one of the conditions which were jointly necessary to produce the event or occurrence. Ordinarily, however, the application of the commonsense test of causation is enough to determine whether the accused's act or omission was sufficiently significant to make him or her ‘causally responsible’ for the event or occurrence in question. But there are two cases where the invocation of commonsense principles of causation often provides little assistance to the jury. The first is the case where an accused's act would not have brought about the event or occurrence without the intervention of a subsequent act of the victim or a third party. The second is the case where, notwithstanding the accused's act or omission, the event or occurrence could have been prevented if the victim or a third person had taken action to avoid the consequences of the act or omission. In these cases, common law judges have sought to use more specific tests for determining whether ‘but for’ acts or omissions of the accused were ‘causally responsible’ for the event or occurrence. The common law judges have used at least four tests for this purpose. They are: (1) the operating and substantial cause test; (2) the natural consequence test; (3) the reasonable foresight of the consequences test; and (4) the novus actus interveniens test, which is used sometimes in conjunction with and sometimes independently of one of the other three tests. Unfortunately, the cases show no consistent pattern in applying these tests. Frequently, one test has been used to the exclusion of the others without any express recognition of the existence of the other tests.
...
If the conduct of the accused in fact induces the victim to do something which ‘causes’ harm to him or her, the act of the victim ought not to be regarded as a novus actus interveniens merely because it was unreasonable. Persons subjected to violence or the threat of violence do not always think rationally or act reasonably. The instinct of self-preservation often causes them to flee or to take action which, while avoiding the immediate danger, places them in greater peril.
...
The fact that the victim's act is unreasonable in seeking to escape from the violent conduct of the accused, therefore, does not seem enough by itself as a matter of either principle or policy to enable the accused to escape causal responsibility for the harm which ensues. On the other hand, even though the victim's act is not a novus actus interveniens, to hold that the accused was criminally responsible for harm which was not intended and which no reasonable person could have foreseen was likely to result from his or her conduct would be an onerous imposition of the criminal law.
Consequently, in a case such as the present, an accused should not be held to be guilty unless his or her conduct induced the victim to take action which resulted in harm to him or her and that harm was either intended by the accused or was of a type which a reasonable person could have foreseen as a consequence of the accused's conduct. In determining whether a reasonable person could have foreseen the harm suffered by the victim, any irrational or unreasonable conduct of the victim will be a variable factor to be weighed according to all the circumstances of the case.”
[9] Royall (supra) at 441, 450, 451
Consideration of the Issue
The question of whether an accused’s wrongful act or omission can constitute the legal proximate cause of an event has been the subject of considerable debate. The general test is that the Crown must show that an accused’s conduct was an operating and contributing cause of a victim’s death. The conduct must not be a trivial cause of the death or merely part of the history of the events leading up to the death.
Where a number of possible causes operate and contribute to a victim’s death the general test requires refinement. The test does not in itself answer the question of the extent to which an accused’s conduct needs to contribute to the death. In Royall the majority view was that the general test was whether an accused’s conduct was a significant contributor to a victim’s death. This must be assessed objectively without reference to the mental state of the accused and is to be determined by applying commonsense to the facts.
An accused’s conduct must not be interrupted by an intervening cause sufficient in law to break the causal link. An intervening cause may be constituted by an act or omission of a victim. This observation is of particular relevance in the present case because if it was a reasonable possibility that Ms Levy applied the handbrake then the question of whether her conduct was an intervening cause sufficient in law to negate the appellant’s responsibility arose. This created a need for the judge to discuss the special case of conduct by a victim as a result of fear, the need to escape or self preservation. In such a circumstance was the appellant’s conduct still sufficiently connected to the death for the purposes of establishing legal responsibility or did Ms Levy’s actions break the causal connection between the appellant’s conduct and Ms Levy’s death?
Counsel for the appellant submitted that because these difficult questions were ultimately to be determined by the jury, clear and careful directions were required. It was said that a direction that the appellant’s conduct had to be a significant contributor and not be overwhelmed by the application of the handbrake was too rudimentary to adequately assist the jury to address the issue of causation. The judge’s direction did not address the potential significance of Ms Levy’s conduct and the possible reasons for her conduct. A Royall direction was required.
The judgments in Royall confirm that in the ordinary case a direction that the Crown must prove that an accused’s conduct whether by act or omission contributed significantly to the death of a victim. A direction that a jury is to apply its commonsense when answering this question is adequate. However each member of the High Court observed that when a victim’s death is said not to be caused directly by the conduct of an accused but by the conduct of a victim a further direction is generally necessary. The terms of such a direction will vary according to the particular circumstances of the case.
There may be circumstances when the need for a direction concerning reasonable foreseeability on the part of an accused may arise. Brennan and McHugh JJ both treated reasonable foreseeability as part of the test and said that it should have been included in the direction to the jury. Mason CJ, Deane and Dawson JJ contemplated circumstances where a reasonable foreseeability direction could be required. Toohey and Gaudron JJ could not exclude the possibility of a reasonable foreseeability direction being required in some unspecified circumstances.
If in a given case there is a reasonable possibility that the conduct of a victim was a direct cause of death then a jury will need further assistance in determining the issue of causation. A jury should be told that if they conclude that there is a reasonable possibility that a victim overreacted in a way that was disproportionate to the danger or that a victim’s conduct was not a natural consequence of the danger or that a victim’s conduct arose from a fear that was not well grounded and not reasonable then an accused is entitled to be acquitted. A jury should understand that if it reaches any of the above conclusions then a victim’s conduct amounts to an intervening cause and an acquittal should follow.
The earlier analysis of Royall provides support for the submission that in the present case the judge failed to adequately direct the jury about causation. As earlier observed the judge raised with them the reasonable possibility that Ms Levy applied the handbrake. However having done so he then did little more than tell them that they had to be satisfied that the appellant’s conduct was a substantial cause of Ms Levy’s death before they could find the appellant guilty.
Misdirection
In the present case the judge directed the jury on a number of occasions that the Crown had to prove that the appellant drove at a speed and in a manner that was dangerous to the public and that his driving caused the death of Ms Levy. The judge left it open to the jury to conclude as a reasonable possibility that the collision would not have occurred if the handbrake had not been applied. He also left it open for the jury to conclude as a reasonable possibility that Ms Levy applied the handbrake.
The judge’s direction raised the issue of whether Ms Levy’s conduct overwhelmed the appellant’s conduct. The judge did not identify the need to assess Ms Levy’s conduct or provide any assistance as to how it could be assessed. He gave no direction in regard to the evaluation of Ms Levy’s conduct and whether it could have broken the chain of causation. The judge did not address the concepts of proportionate behaviour, well grounded and reasonable behaviour or whether Ms Levy’s conduct was a natural consequence of the situation in which she found herself. The jury did not receive assistance on these important matters.
As earlier observed the judge initially limited his direction to whether there was a reasonable possibility that Ms Levy applied the handbrake and whether there was a reasonable possibility that her conduct overwhelmed or overtook the appellant’s conduct. The judge then went further and directed the jury that if Ms Levy’s conduct overwhelmed or overtook the appellant’s conduct then the jury may acquit. This was incorrect. If the conduct of Ms Levy did “overwhelm” or “overtake” the appellant’s conduct then the appellant was entitled to be acquitted.
It is necessary to evaluate the prejudice occasioned by the misdirections. Causation was a critical and central issue in the case. The jury required considerable assistance. This was not forthcoming. The lack of guidance resulting from the inadequate direction was highly prejudicial to the appellant. There was a miscarriage of justice in this case.[10] The case should be remitted for retrial.
[10] The proviso appears in section 353(1) of the Criminal Law Consolidation Act 1935 (SA) which provides:
Other Complaints
Counsel for the appellant complained that the judge erred in refusing to exclude the evidence of John Richardson and Peter Gaston. These witnesses claimed to have seen the vehicle driven by the appellant shortly prior to the collision. Criticism was also made about the judge’s decision to permit the appellant to be cross examined as to the engagement of an expert engineer. As Perry J concluded there is no substance to these complaints.
Sentence Appeal
Given that the conviction should be set aside it follows that the sentence imposed should also be set aside. However as other members of this court have taken a different view of the merits of the appeal against conviction, the appeal against sentence remains for consideration.
The judge’s sentencing remarks included:
“It is clear you must be sentenced to a term of imprisonment. What concerns me is whether I should suspend it or not. On the one hand, I have your impeccable record as far as work is concerned, and the ramifications upon you and your family if a term of imprisonment is served immediately.
On the other hand I have the seriousness of this offence. A combination of alcohol and speed in the area that you were driving is a danger which the public just don’t have to tolerate. One wonders what would have happened if there was a car travelling in the opposite direction when your vehicle went from one side of the road completely over to the other side of the road at speed and hit a tree, having been travelling at that very fast rate of speed as described. Although, of course, I do not in any way punish you for contesting this matter, which is your right, I cannot give you the benefit of an early plea or any plea at all which would show contrition.
I also bear in mind in relation to this matter that general deterrence is of great importance, especially when we’re talking about speed and alcohol.
The sentence of the court is that you be imprisoned for 18 months. I set a non parole period of 9 months. Your licence will be suspended for a period of 7 years. In my view, the seriousness of this offence outweighs those matters which are personal to yourself, and general deterrence must take precedence and I cannot suspend that sentence. ...”
Counsel for the appellant did not complain that the head sentence or non parole period were excessive. However it was said that the sentence imposed by the judge should have been suspended. The judge failed to have sufficient regard to the effect of a sentence of imprisonment on the appellant’s family. The appellant’s favourable personal antecedents supported a suspended sentence. He was a first offender. The judge observed:
“You are aged 36, you were born in Baghdad, and you were married in 1989. You and your wife came to Australia in 1992 and since being here your history has been without fault. You have always been employed, and since March 1998 you were employed with Anglicare as their information technology manager. I have received many glowing reports from people involved in that organization, I take their references into account.
You left that employment in January 2001 and took up a position as information technology manager at the Adelaide Airport where you are employed today. I am told if you do not incur an immediate term of imprisonment you will retain that job.
You have two children aged 7 and 3 and I’m told that the effect of an immediate custodial sentence will cause great hardship to your wife and children. I’m told that because of the financial structure of your affairs there’s a very good chance your wife and children would lose their present home and you, of course, would be out of a job.”
A second matter in mitigation said to support suspension was the application of the handbrake by Ms Levy. This was said to reduce the appellant’s culpability. The judge addressed this issue:
“In your evidence and in your statement to the police you denied applying the handbrake. In my view, the evidence and the jury’s verdict is consistent with the fact that the victim applied the handbrake and I bear in mind the evidence of Mr England that such an application would totally destabilise the car, even at lower speeds.
Why she applied the handbrake is, of course, a mystery because in your evidence you cannot remember the handbrake being applied and you gave no evidence on that topic. However, the jury verdict is consistent with the fact that a combination of your speed, the fact that you were affected by liquor, and combined with the application of the handbrake, this led to the accident which caused the death of the deceased.
Consistent with the jury’s verdict is the fact that your driving, in relation to speed and consumption of alcohol, was a substantial cause of that accident, even though the application of the handbrake may have been the final cause.”
Counsel for the Crown submitted that there was no error in the judge’s refusal to suspend the sentence. During sentencing the Crown had not explicitly opposed suspension but had drawn the judge’s attention to the high speed at which the appellant approached the bend and his blood alcohol reading. It was said that the conclusion that Ms Levy had applied the handbrake did little to ameliorate the seriousness of the appellant’s conduct. It was his conduct that induced Ms Levy’s action.
The sentencing judge had a discretion to suspend the sentence of imprisonment. He declined to do so. An immediate custodial sentence for this offence is the norm or the rule. In exceptional circumstances the court has suspended custodial sentences. The issue for determination is whether this court should interfere with the judge’s exercise of discretion.

In Dinsdale v The Queen[11] the principles for reviewing the exercise of a judge’s sentencing discretion were discussed by Gleeson CJ and Hayne JJ:
“The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v The King:
‘It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’ ”
[11] (2000) 202 CLR 32 at 324-5
In R v Hicks[12] King CJ observed that it was not the norm to suspend custodial sentences in cases of causing death by dangerous driving:
“Considerations of deterrence and satisfaction of public outrage must undoubtedly play a large part in the fixing of sentences for crimes of this kind. For that reason suspension of a sentence for this type of crime cannot be the norm. But important as those considerations are, other proper sentencing considerations are not to be disregarded. It is proper to use the power of suspension which Parliament has conferred upon the courts if the circumstances are appropriate.
... The need to satisfy public outrage and the common assumption, unverified I may say, that severe penalties where death results may have the effect of deterring dangerous driving, make it inevitable that suspension of sentence for this class of offence will be the exception rather than the rule.”
[12] (1987) 45 SASR 270 at 272
This court’s attitude towards offences of this nature has not altered over the years. The principles enunciated in Hicks were applied in Pfeiffer v The Queen[13] This was a case in which the appellant overturned his vehicle on a country road causing the death of his passenger. The appellant was found to have been driving erratically at excessive speed. He failed to keep a proper look out and failed to react with the required amount of care and skill when his vehicle left the bitumen and found its way onto the gravel verge. The appellant had a blood alcohol level of 0.24 some 80 minutes after the crash. The Court of Criminal Appeal upheld the sentence of two years imprisonment with a non parole period of 12 months and found no error in the sentencing judge’s decision to refuse to suspend the sentence. King CJ with whom Cox and Olsson JJ agreed said:
“This was a serious example of the crime of driving in a manner dangerous to the public, thereby causing death. The death of this unfortunate victim was brought about by the fact that the appellant was substantially under the influence of liquor when he was driving the car. It is true, of course, that the victim contributed to his own unfortunate death by drinking with the appellant and also by not wearing a seat belt. But the driving of the appellant cannot be excused on either of those grounds.
I think that the seriousness of this offence was in itself sufficient to warrant for the sentencing Judge’s refusal to suspend the sentence. ”
[13] SASC CCA unreported 11 December 1990 Judgment No 2682
In R v Chappell[14] a vehicle driven by the appellant clipped the rear of a semi-trailer after straddling the centre of the road. Whilst travelling on the incorrect side of the road the appellant’s vehicle then collided head on with another vehicle causing the death of two of its occupants. The appellant’s passenger was significantly affected by alcohol and it was for this reason that the appellant was driving. The passenger was said to have been seriously ill, depressed and suicidal. It was accepted that the appellant’s passenger grabbed the steering wheel causing the vehicle to veer towards the semi-trailer but there was no suggestion that he was responsible for the vehicle straddling the centre line in the way that it did. The Court of Criminal Appeal upheld an immediate custodial sentence. Doyle CJ with whom Perry and Bleby JJ agreed observed:
“He was driving dangerously on a highway. He was driving in a manner that created a grave risk of a serious accident. He must have known this. There was no excuse at all for the manner of his driving. The dangerous driving was not the result of momentary inattention. It was the result of a reckless disregard of other road users. It was foreseeable that if an accident occurred, people in another vehicle might be killed or injured. The conduct of the passenger contributed to the accident, but Mr Chappell remains responsible in law for what happened. The passenger’s conduct is a mitigating factor, but it remains the case that Mr Chappell’s dangerous driving caused death and injury. Although everything happened in a single incident, the sentence to be imposed must reflect the fact that Mr Chappell killed two people and injured another.
...
Causing death or harm to another by dangerous driving is clearly regarded by parliament as a serious offence. It is a not uncommon offence. It is an offence with devastating consequences for the victims, who are usually people with no involvement at all in the defendant’s criminal conduct, other than the fact that they are innocent bystanders who suffer the consequences of it. The Courts must do what they can to deter such conduct. This means that, when appropriate, they must impose heavy penalties in the hope of deterring others.”
[14] [2001] SASC 258; 34 MVR 244 at [22] and [29]. See also R v Walden (1993) 19 MVR 193
The frequency with which the courts are dealing with cases of causing death by dangerous driving highlight the need for general deterrence. The gravity of the offence formed a sufficient basis for the judge to decline to suspend the sentence. The gravity in this case is underscored by the high speed at which the appellant was driving and his alcohol consumption. The possible application of the handbrake by Ms Levy does not excuse the appellant’s conduct.
No error of principle has been identified. No relevant consideration was overlooked. No irrelevant matters were taken into account. No error of fact has been identified. The sentence imposed was within the judge’s discretion. The judge did not err. The appeal against sentence should be dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN THE JUDGMENT
1. (1959) 101 CLR 298.
2. See Cornish (1988) 48 SASR 520, Mayne (1975) 11 SASR 583 and Leaf-Milham (1987) 47 SASR 499.
3. “ Statement of Offence
Causing Death by Dangerous Driving. (Section 19A(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Hassan Mohammad Dawood on the 27th day of November, 1999 at Eden Valley, drove a motor vehicle in a manner and at a speed which was dangerous to the public and thereby caused the death of Colleen Judith Levy.”
4. (1991) 172 CLR 378
5. Royall (supra) at 389-390
6. Royall (supra) at 398, 399
7. Royall (supra) 412, 413
8. Royall (supra) 424, 425
9. Royall (supra) at 441, 450, 451
10. The proviso appears in section 353(1) of the Criminal Law Consolidation Act 1935 (SA) which provides:
“The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.” See Driscoll v The Queen (1976-1977) 137 CLR 517 at 524-5; Mraz v The Queen (1954-56) 93 CLR 493 at 514; Domican v The Queen (1991-1992) 173 CLR 555 at 565-567; Festa v The Queen (2001) 76 ALJR 291 at 326; Ugle v The Queen [2002] HCA 25.
11. (2000) 202 CLR 32 at 324-5
12. (1987) 45 SASR 270 at 272
13. SASC CCA unreported 11 December 1990 Judgment No 2682
14. [2001] SASC 258; 34 MVR 244 at [22] and [29]. See also R v Walden (1993) 19 MVR 193

“The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.” See Driscoll v The Queen (1976-1977) 137 CLR 517 at 524-5; Mraz v The Queen (1954-56) 93 CLR 493 at 514; Domican v The Queen (1991-1992) 173 CLR 555 at 565-567; Festa v The Queen (2001) 76 ALJR 291 at 326; Ugle v The Queen [2002] HCA 25.

[2002] SASC 346

24 October 2002