(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
7 February 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW
Application for permission to appeal against acquittal by the Director of Public Prosecutions pursuant to s 157(1)(b)(i) of the Criminal Procedure Act 1921 (SA).
Following a trial in the District Court by judge alone, the respondent was acquitted of one charge of causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
The Director sought permission to appeal against the acquittal on the ground that failing to find the respondent guilty of driving in a manner dangerous on the facts as found constituted an error of law.
Held (the Court) dismissing the application for permission to appeal against acquittal:
1.The standard direction given in dangerous driving cases in South Australia presents no difficulty provided that the elements of the offence are faithfully addressed and the directions adhere to the circumstances of the case before the court. [97]
2.It was open to the trial judge, as the constitutional trier of fact, to conclude that it had not been proved beyond reasonable doubt that the respondent drove in a manner dangerous within the meaning of s 19A(1) of the CLCA. The result arrived at by the trial judge sets no precedent or standard which can or should be followed in other cases. [104]-[109]
3.Even if there were room to doubt whether an acquittal was open to the trier of fact in this case, the rigorous application of the principles relating to prosecution applications for permission to appeal against an acquittal requires that prominence be given to double jeopardy principles and that permission to appeal be refused. [107], [111]
4.Observations made about certain propositions stated in R v Fitzgerald (2023) 307 A Crim R 101 and whether the appeal is by way of rehearing. [18]-[25]; [26]-[35]
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Donovan [2025] SASCA 7
Case
[2025] SASCA 7
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions applied for permission to appeal against the acquittal of the respondent, Donovan, in the District Court. The dispute concerned whether the respondent had driven in a manner dangerous to the public, leading to the death of Ms Minerds. The appeal was heard by the Full Court of the Supreme Court of South Australia.
The primary legal issue before the court was whether the trial judge erred in concluding that it was reasonably possible that the respondent did not drive in a manner dangerous to the public. This involved an evaluation of the trial judge's findings of fact and inferences drawn from the evidence presented.
The court considered the respondent's driving on St Vincent Street, Port Adelaide, where he was travelling east in the left lane of two lanes, under the 40 km/h speed limit, and intending to turn right at an intersection. The trial judge had conducted an extensive review of the evidence, including her own view of the accident scene, and found that the respondent's speed was between approximately 32 km/h and 42 km/h immediately prior to the collision, but ultimately found he was travelling under the speed limit. The court noted that while inattention and carelessness can constitute dangerous driving, the trial judge had comprehensively addressed the issue of failing to maintain a proper lookout without error, and her findings were open to her as the trier of fact.
Given that the respondent had already served substantially his sentence and that the case did not raise any important or contested issues of principle capable of affecting the general administration of the law, the court determined that this was not an appropriate case to grant permission to appeal. The court concluded that the respondent should not be subjected to a second criminal trial and therefore dismissed the Director's application for permission to appeal against the acquittal.
Orders
Orders of the court
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Background
Background to the litigation
In any event, it was not suggested that it was not necessary for this Court to review the whole of the record, as well as the reasons of the trial judge, when evaluating the Director’s application. This case falls to be decided on the facts as found and the inferences drawn by the trial judge, where only the ultimate conclusion is attacked. Any potential dispute about the nature of an appeal under s 157(1)(b) of the CPA and what is meant by an appeal by way of rehearing in any abstract sense does not arise for decision. An overview of the facts as found The sole ground of appeal is effectively that the trial judge erred in concluding that it was reasonably possible that the respondent did not drive in a manner dangerous to the public. The trial judge conducted an extensive review of the evidence led before her, addressing a number of unchallenged or agreed facts.[39] Her Honour carefully recorded her impression regarding the scene of the motor accident based on the view she took of the scene. What follows is largely taken from the trial judge’s review of the evidence as there was no dispute about it.[39] R v Donovan [2023] SADC 152, [125]. In overview, at around 11.20 am on 28 July 2021 the respondent was driving a Suzuki Ignis east along St Vincent Street, Port Adelaide. The respondent was aged 61 years at the time of the trial. The respondent was at the time of the motor accident working as a mental health community outreach worker for Uniting Communities. He had been working in that role for 10 years. His job required extensive driving to clients severely impacted by mental health issues. The range of these mental health issues varied but were predominantly schizophrenia, bi-polar disorder, and severe depression. The respondent’s duties required that he travel to a client’s address and take the client to a chemist to re-stock any medication required by the client. It was after taking a client back to his home from a chemist that the respondent then drove to Port Adelaide to buy some fruit before seeing his next client at Woodville. The respondent stopped at a red light at a set of lights at the intersection of Nelson and St Vincent Streets. There was a truck behind him. When the lights turned green, he moved off in the direction of the intersection between St Vincent Street and Commercial Road to the east. Commercial Road ran north-south across St Vincent Street. The respondent was intending to turn right at the Commercial Road intersection. The respondent was travelling in the left lane of two east bound lanes, and under the speed limit of 40 kph.[40] [40] R v Donovan [2023] SADC 152, [125] (9): “The actual speed of the accused’s vehicle at the time of the collision cannot be determined. The accused’s vehicle was travelling at a speed in the range of approximately 32km/h and 42km/h immediately prior to the collision, but based on the accused's evidence and witness accounts, I find that the accused was travelling under the speed limit of 40km/h at the time of the collision”.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The respondent has already faced a criminal trial in the District Court where his liberty was at stake and where he has been sentenced on his plea for offending which resulted in the death of Ms Minerds. The respondent has substantially, if not now wholly, served the sentence imposed on him. In addition, it cannot be said that this case raises any important or contested issue of principle, or that a grant of permission to appeal is capable of affecting the administration of the law in any general way. Though the result arrived at by the trial judge in this case was open to her, it sets no precedent or standard which can or should be followed in other cases. Conclusion Whilst it may be readily accepted that cases of inattention and carelessness can amount to dangerous driving, the failure to maintain a proper lookout was in this case addressed clearly and comprehensively by the trial judge without error and in a manner that was open to her as the constitutional trier of fact. Even if it could be said that the outcome of an acquittal was not open to the trial judge, this is not an appropriate case in which to grant permission. The respondent should not be subjected to a second criminal trial. The Director’s application for permission to appeal against acquittal should be dismissed.