R v Donovan - [2025] SASCA 7

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v DONOVAN
[2025] SASCA 7
Judgment of the Court of Appeal
(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]

Crimes Act 1958 (Vic) s 319; Criminal Procedure Act 1921 (SA) ss 151, 153, 155, 157, 158; Criminal Law Consolidation Act 1935 (SA) s 19A; Juries Act 1927 (SA) s 7; Joint Criminal Rules 2020 (SA) r 204.2; Road Traffic Act 1961 (SA) s 45, referred to.
Bliss v R (1993) 173 LSJS 255; England v R (1991) 14 MVR 187 (delivered 19 June 1991); King v The Queen (2012) 245 CLR 588; R v Brougham (2015) 122 SASR 546; R v Coventry [1938] SASR 79; R v Coventry (1938) 59 CLR 633; R v Fitzgerald (2023) 307 A Crim R 101; The Queen v Mayne (1975) 11 SASR 583, discussed.
Alford v Magee (1952) 85 CLR 437; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126; Belle v Chiropractors Board of SA [2006] SASC 250; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; DM & AJ Bell Pty Ltd v Motor Fuel Licensing Appeal Tribunal (1988) 50 SASR 39; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; Everett v The Queen (1994) 181 CLR 295; Fox v Percy (2003) 214 CLR 118; Fritsch v Police [2012] SASC 54; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Hamra v The Queen (2017) 260 CLR 479; Hinrichsen v The King [2023] SASCA 111; House v The King (1936) 55 CLR 499; Jiminez v The Queen (1992) 173 CLR 572; JMH v The Queen [2011] 3 SCR 197; Kamleh v The Queen (1990) 51 A Crim R 435; Kimber v Chief Executive [2021] SASCA 133; Kroon v The Queen (1990) 55 SASR 476; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Malvaso v The Queen (1989) 168 CLR 227; McBride v The Queen (1966) 115 CLR 44; McCandless v Police [2021] SASC 98; Munda v Western Australia (2013) 249 CLR 600; Nagy v Police [2018] SASC 141; Police v Brown (1994) 72 A Crim R 527; Police v Jachmann [2009] SASC 392; Police v Jachmann [2010] SASC 345 ; Police v Melisi (2010) 106 SASR 105; Police (SA) v Murphy (unreported, Supreme Court of South Australia, SA, Debelle J, No S5421, 9 January 1996); Police (SA) v W, BC (2006) 160 A Crim R 278; Police v W, BCI (2006) 160 A Crim R 278; Powell v Streatham Manor Nursing Home [1935] AC 243; Question of Law Reserved No. 1 of 2022 [2023] SASCA 109; R v Ametovic [2024] SASCA 153; R v De Montero (2009) 25 VR 694; R v Donovan [2023] SADC 152; R v Fleming; R v Maher (2017) 129 SASR 27; R v Garner; R v Webb [2021] SASCA 68; R v Hamra (2016) 126 SASR 374; R v Henderson (2023) 142 SASR 507; R v Kamleh (1990) 51 A Crim R 435; R v Lenarczyk [2015] SADC 95; R v Mayne (1975) 11 SASR 583; R v Willingham (2012) 112 SASR 278; Semple v Williams (1990) 156 LSJS 40; Smith v Chief Executive [2024] SASCA 107; Sprigg v Police [2011] SASC 10; Templeton v Australian Securities and Investments Commission (2015) 108 ACSR 545; The Queen v Duncan (1953) 11 SASR 592; Thiele v Police [2009] SASC 159; Thorogood v Warren (1979) 20 SASR 156; T v Medical Board of South Australia (1992) 58 SASR 382; Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; Weinel v Rojas (unreported, Supreme Court of South Australia, SA, Olsson J, 10 June 1994); Wigg v Architects Board of SA (1984) 36 SASR 111; Wimmer v Police [2013] SASC 95, considered.

R v DONOVAN
[2025] SASCA 7
Court of Appeal – Criminal: Livesey P, Bleby and David JJA
THE COURT:
Introduction

The Director of Public Prosecutions (SA) (the Director) seeks permission to appeal the respondent’s acquittal pursuant to s 157(1)(b)(i) of the Criminal Procedure Act 1921 (SA) (the CPA).
The acquittal was entered on 7 November 2023 following a trial in the District Court by judge alone pursuant to s 7 of the Juries Act 1927 (SA).[1] 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 respondent’s plea of guilty to a charge of aggravated driving without due care causing death had not been accepted by the prosecution.[2]
[1] R v Donovan [2023] SADC 152 (Judge Fuller).
[2] On 8 December 2023, the respondent was sentenced for this offending to a sentence of three months’ imprisonment, reduced by 5 per cent for the plea of guilty to two months and 25 days, which was suspended upon entry into a 12-month good behaviour bond, together with an order for 120 hours of community service to be performed within 12 months, and a 12-month licence disqualification.
The Director does not allege any error of fact or law, apart from the acquittal itself, and accepts that the application for permission to appeal must be evaluated against the findings made by the trial judge on the evidence before the trial court.[3]
[3] A late application for a view of the scene of the motor accident was refused by the Court of Appeal on Monday, 18 March 2024.
The Director contended that on the findings made by the trial judge regarding the manner of the respondent’s driving, the element of the offence which required proof beyond reasonable doubt that the respondent drove in a manner dangerous to the public was objectively satisfied with the result that the trial judge made an error of law in connection with her application of the objective standard to the facts as found.
In substance, the Director argued that on the facts as found it was an error of law to fail to find the respondent guilty of driving in a manner dangerous.[4]
[4] Vetter v Lake Macquarie City Council (2001) 202 CLR 439, [24]-[25] (Gleeson CJ, Gummow and Callinan JJ), citing Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126, 138: “if the facts inferred … from the evidence … are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law”. See also Kimber v Chief Executive [2021] SASCA 133, [25]-[28] (Livesey P, Bleby and David JJA); Smith v Chief Executive [2024] SASCA 107, [36]-[38] (Livesey P, Bleby and David JJA).
The parties were agreed that the Director’s application must be approached with great care and, unless this case could properly be regarded as coming within the category of the “rare and exceptional” case,[5] the rule against double jeopardy should prevail because an acquittal by a criminal court should, save in exceptional circumstances, be regarded as final.[6]
[5] See the recent discussion about what is meant by “rare and exceptional” in the context of a prosecution appeal against sentence, deprecating the notion that it represents a “test”, R v Ametovic [2024] SASCA 153, [93] (S Doyle, Bleby JJA and B Doyle AJA).
[6] R v Brougham (2015) 122 SASR 546, [9] (Peek J). An analogy has been drawn with prosecution appeals against acquittals by Magistrates, at least where the acquittal proceeded from a lack of satisfaction about proof of guilt beyond reasonable doubt on the facts, see Thorogood v Warren (1979) 20 SASR 156, 159 (Zelling J); Semple v Williams (1990) 156 LSJS 40, 41-43 (Olsson J); Police v Brown (1994) 72 A Crim R 527, 535-536 (Olsson J); Police v Jachmann [2009] SASC 392, [8] (Layton J); Police v W, BCI (2006) 160 A Crim R 278, [12] (White J), and Police (SA) v Melisi (2010) 106 SASR 105, [3] (White J).
The decision-making by the trial judge was in the nature of an evaluative exercise,[7] and this Court is not constrained by the rules concerning appellate restraint discussed in House v The King.[8] This militates against viewing the task required of this Court as involving the review of an exercise of “discretion”.[9]
[7]     Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124, [40] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
[8]     House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).
[9]     On this approach, whether there was error is not determined according to the principles discussed in House v The King, but according to the standard of correctness described in Warren v Coombes (1979) 142 CLR 531, 551-552; see GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, [15], [26]-[27] (Kiefel CJ, Gageler and Jagot JJ), [95]-[96] (Steward J), and [161]-[162] (Gleeson J).
Nonetheless, and insofar as there may have been an evaluation of a matter about which “reasonable minds may differ”, the Director accepted that clear error in the approach taken by the judge, or the findings she made, had to be established before this Court could intervene:[10]
… But it must be accepted that in some cases where a broad power is being exercised in accordance with very general factors, the boundary between a discretionary and non-discretionary judgment can become blurred. We have considered the discussion of this question in Mobilio v Balliotis [1998] 3 VR 833 at 836–841 per Brooking JA, although we note that his Honour’s views were not the subject of any consensus. In any event, a different issue and statutory regime was being considered to the issue that we are now addressing. If anything, we are inclined to adopt Ormiston JA’s approach (see at 853) to the effect that a decision of the type before us is not a true discretionary judgment, but in the present case the test for error on appeal may be akin to that applicable to the exercise of a judicial discretion. So, it may be set aside where obvious errors of fact or law have been made or the decision otherwise is plainly wrong: at 853 and 854. Similar observations were made by Phillips JA at 858 and 859. Another way to express the point is that where an evaluative judgment is involved upon which reasonable minds might differ and where there is no one correct conclusion, then clear error in the primary judge’s approach or findings must be established. It is not enough that an appeal court may have a preference for a different view to that taken by the primary judge: see Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [25] per Allsop J (as he then was)).
[10] Templeton v Australian Securities and Investments Commission (2015) 108 ACSR 545, [23] (Besanko, Middleton and Beach JJ).
For the reasons that follow, the Director has failed to establish a material error of law but, in any event, permission to appeal should be refused.
The approach required of this Court
Sections 157(1)(b)(i) and 158(4) of the CPA are relevant to the Director’s application. They commenced in their present form on 5 March 2018.[11] Section 157 relevantly provides:
[11] These provisions have predecessor provisions in similar but not identical terms, being ss 352(1)(ab) and 353(2a) of the CLCA, which operated between 6 July 2000 and 2 August 2008, and the amended ss 352(1)(ab) and 353(2a) of the CLCA, which operated between 3 August 2008 and 4 March 2018; see generally, R v Fitzgerald (2023) 307 A Crim R 101, [12]-[18] (Doyle, Bleby and David JJA).
157—Right of appeal in criminal cases
(1)Appeals lie to the Court of Appeal as follows:
(a) if a person is convicted on information—
(i)the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;
(ii)the convicted person may appeal against the conviction on any other ground with the permission of the Court of Appeal or on the certificate of the court of trial that it is a fit case for appeal;
(iii)subject to subsection (2), the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Court of Appeal;
(b) if a person is tried on information and acquitted, the Director of Public Prosecutions may, with the permission of the Court of Appeal, 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 …
Section 157(1)(a) is the South Australian iteration of the common form criminal appeal provision. Section 157(1)(b) confines the scope for a Director’s appeal to cases where, as here, the trial was by judge alone (or where the trial judge directed the jury to acquit). Where the trial was by jury, and where the jury has acquitted an accused, the Director has no right to seek permission to appeal against the acquittal.
It is an error of law to fail to consider and decide an application for permission to appeal before allowing a prosecution appeal.[12] In Hamra v The Queen,[13] the High Court rejected the criticisms made of the reasons given by the Court of Criminal Appeal for granting permission to appeal in that case, explaining that it was clear that the Court was concerned to correct an error of law, and it was “not necessary in every case to refer to every factor which has weight in a discretionary decision. What is sufficient in each case does not depend upon any rigid formula and will be informed by all the circumstances of the case”.[14]
[12] Malvaso v The Queen (1989) 168 CLR 227.
[13] Hamra v The Queen (2017) 260 CLR 479.
[14] Hamra v The Queen (2017) 260 CLR 479, [41]-[42] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).
An alternative to s 157(1)(b) is the Director’s power to reserve questions of law for the determination of the Court of Appeal under s 153(4) of the CPA. By that provision, the court before which a person has been tried and acquitted must, on an application by the Attorney-General or the Director, reserve a question of law, whether antecedent to the trial or arising in the course it, for consideration and determination by the Court of Appeal.[15]
[15] See, for example, Question of Law Reserved No. 1 of 2022 [2023] SASCA 109, [2]-[3] (Livesey P), [52] (Lovell JA). By s 155(2)(c) of the CPA, no determination or order made following a trial by jury can invalidate or otherwise affect the acquittal. Whether an “issue antecedent to trial” is the same as a “question antecedent to trial”, and defined by s 151 of the CPA, does not arise in this case.
The Director accepted that, if he succeeded under s 157(1)(b), the powers of this Court are confined by s 158(4). That is, this Court may allow the appeal, quash the acquittal and order a new trial, see s 158(4)(b) of the CPA:
(4) On an appeal against acquittal brought by the Director of Public Prosecutions, the Court of Appeal may exercise any 1 or more of the following powers:
(a)     it may dismiss the appeal;
(b)     it may allow the appeal, quash the acquittal and order a new trial;
(c)     it may make any consequential or ancillary orders that may be necessary or desirable in the circumstances.
In a series of decisions it has been held in South Australia that a Director’s application for permission to appeal against an acquittal raises principles of double jeopardy.[16] Indeed, the application of these principles to the determination of an application for permission to appeal against an acquittal has been regarded as stronger than in the case of an application for permission to appeal against a sentence.[17]
[16] R v Willingham (2012) 112 SASR 278, [29]-[33] (Doyle CJ, with whom Stanley J agreed); R v Brougham (2015) 122 SASR 546, [29]-[45] (Peek J, with whom Gray and Nicholson JJ agreed); R v Hamra (2016) 126 SASR 374, [113]-[115], [122] (Peek J); R v Fleming; R v Maher (2017) 129 SASR 27, [60] (Peek J); R v Garner; R v Webb [2021] SASCA 68, [117] (Kelly P, Lovell and Bleby JJA).
[17] R v Brougham (2015) 122 SASR 546, [7] (Peek J, with whom Gray and Nicholson JJ agreed); followed in R v Garner; R v Webb [2021] SASCA 68, [78]-[81] (Kelly P, Lovell and Bleby JJA); and R v Fitzgerald (2023) 307 A Crim R 101, [54] (Doyle, Bleby and David JJ).
A number of High Court decisions have referred to double jeopardy principles as raising deep-rooted notions of fairness and decency.[18] Particular restraint is exercised by the appeal court on a prosecution appeal against an acquittal, especially where the verdict of acquittal results from the trial judge’s lack of satisfaction about proof of guilt on the facts.
[18] R v Brougham (2015) 122 SASR 546, [76] (Peek J, with whom Gray and Nicholson JJ agreed), citing Malvaso v The Queen (1989) 168 CLR 227, 234 (Deane and McHugh JJ); Everett v The Queen (1994) 181 CLR 295, 305 (Brennan, Deane, Dawson and Gaudron JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573, 583-584 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Munda v Western Australia (2013) 249 CLR 600, 628 (Bell J).
In R v Brougham,[19] the Court of Criminal Appeal held that in a trial by judge alone there was a difference between the path taken to a conviction and that which is taken to an acquittal.[20] An acquittal is “not a finding of fact but instead a conclusion that the standard of persuasion beyond a reasonable doubt has not been met”, based on an assessment of the evidence in the particular case.[21] That kind of conclusion is not generally amenable to appellate review because it effectively requires the appeal court to retry the case on the fundamental issue that was before the trial court.[22]
[19] R v Brougham (2015) 122 SASR 546.
[20] R v Brougham (2015) 122 SASR 546, [69]-[70] (Peek J, with whom Gray and Nicholson JJ agreed).
[21] R v Brougham (2015) 122 SASR 546, [72] (Peek J, with whom Gray and Nicholson JJ agreed), quoting JMH v The Queen [2011] 3 SCR 197, [25] (Cromwell J, with whom McLachlin CJ, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ agreed).
[22] R v Brougham (2015) 122 SASR 546, [74]-[78] (Peek J, with whom Gray and Nicholson JJ agreed).

In R v Fitzgerald,[23] this Court articulated the following propositions (amongst others) when examining the considerations relevant to whether the Court of Appeal should grant the Director permission to appeal against an acquittal:[24]
·Appellate restraint should be exercised on a prosecution appeal against an acquittal, particularly where the verdict is by reason of the trial Judge’s lack of satisfaction of guilt on the facts, as distinct from an error of law. Where there is an error of law, this Court may be more willing to grant permission and interfere with an acquittal.[25]
·Permission to appeal should not be granted in circumstances where no error of law or principle is demonstrated.[26] That is to say, permission to appeal should not be granted where no error of law or principle is demonstrated, or where the error could not have materially affected the verdict of acquittal.[27]
[23] R v Fitzgerald (2023) 307 A Crim R 101.
[24] R v Fitzgerald (2023) 307 A Crim R 101, [54] (Doyle, Bleby and David JJ).
[25] R v Fitzgerald (2023) 307 A Crim R 101, [54] (Doyle, Bleby and David JJ), citing R v Brougham (2015) 122 SASR 546, referring to Thorogood v Warren (1979) 20 SASR 156, Weinel v Rojas (unreported, Supreme Court of South Australia, SA, Olsson J, 10 June 1994), Police (SA) v Murphy (unreported, Supreme Court of South Australia, SA, Debelle J, No S5421, 9 January 1996), and Police (SA) v W, BC (2006) 160 A Crim R 278.
[26] R v Fitzgerald (2023) 307 A Crim R 101, [54] (Doyle, Bleby and David JJ), citing R v Fleming; R v Maher (2017) 129 SASR 27, [61] (Peek J).
[27] R v Fitzgerald (2023) 307 A Crim R 101, [144] (Doyle, Bleby and David JJ).
The Director submitted that these propositions were expressed in terms that were “too absolute”,[28] particularly as s 157(1)(b) provides that the Director may, with permission, appeal on “any ground”. The Director submitted that there could be a case where one or more errors of fact were so egregious that he should have the capacity to mount a challenge under s 157(1)(b) of the CPA. Though that kind of issue does not arise in this case, it was submitted that it was important to recognise the breadth of the appeal right, freed of what was described as, effectively, a judicially legislated “limitation” on the words of the provision.
[28] Particularly the first sentence in each point.
The Director illustrated these submissions by describing the three types of error that might usually be seen where a trial judge has directed an acquittal.[29] These were, first, a mistaken view as to the elements of the offence, secondly, a mistaken view as to the evidence or its effect and, thirdly, an error associated with the exclusion of evidence which had the effect of preventing the prosecution from proving its case. It was submitted that, despite the absolute terms in which the Court expressed itself in R v Fitzgerald, each of these errors should be capable of being challenged.
[29] See s 157(1)(b)(ii) of the CPA.
It is important to recognise that the propositions attacked by the Director were just two of a number set out by the Court of Appeal when broadly illustrating the considerations which will usually be relevant when determining an application for permission to appeal made by the Director under s 157(1)(b) of the CPA. It is important not to take these considerations out of their proper context, elevating their significance rather than viewing them as but two of a number of ways of determining whether a case comes within the rare and exceptional category.
As the issue does not arise for decision in this case, it is not necessary to finally rule on the Director’s submission, though some observations may be made. One must start with the proposition that appeal courts are ordinarily reluctant to interfere with an acquittal:[30]
The fact is that appellate courts have rightly been very reluctant to interfere with a verdict of acquittal based upon a reasonable doubt. A finding of reasonable doubt owes much to the atmosphere of the trial and the appraisal of the witnesses by the court at first instance, and neither of those things are readily susceptible to review by an appeal court.
…
It may be that some of this hesitation by appellate courts derives from the ingrained view of the law that a right of appeal against an acquittal is not presumed, except when given expressly in plain words. The history of that can be seen in the judgment of a Divisional Court in The King v The Keepers of the Peace and Justices for the County of London.[31] There is no doubt that there is such a right of appeal here. Something of that· dislike of an appeal from an acquittal has perhaps coloured the attitude of appeal courts in their treatment of appeals by prosecutors, especially where the acquittal below was on the basis of reasonable doubt. However that may be, I am of the opinion that the view of the law is salutary, and that an acquittal based upon a reasonable doubt should not be interfered with except in a very unusual case, of which this is not one.
[30] Thorogood v Warren (1979) 20 SASR 156, 159-160 (Zelling J).
[31] [1945] 1 K.B. 528.
Assuming that there is a right to appeal against an acquittal, or at least the right to seek permission to do so, the need to observe and give effect to principles of double jeopardy will usually require that the Director demonstrate that there are considerations which, though they must include the outcome or merits, are broader than the outcome or merits of the particular case before the Court. That will usually be easier to demonstrate where the application is concerned with matters of law or principle which may transcend the particular case before the Court, and which may have an important bearing on the administration of justice more generally. Associated with these considerations, it may be observed that the examples given by the Director were clearly not all errors of fact. An error about the elements of an offence is an error of law.
But let it be assumed that a trial judge has made an error of fact. Indeed, let it be assumed that a trial judge has made an egregious error of fact. Let it also be assumed that the error is material in the sense that it is an error capable of affecting the outcome. For these purposes it must be assumed that any error has been made in good faith, and that the trial process has not been wholly undermined and vitiated. In the ordinary case, it is difficult to see how the Director could demonstrate that material errors of fact, rather than material errors of law or principle, will engage questions of high public policy of sufficient importance to the interests of justice that they have the capacity to overcome the common law principles against double jeopardy.[32]
[32] Cf Lacey v Attorney-General (Qld) (2011) 242 CLR 573, [15]-[20] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ); R v Henderson (2023) 142 SASR 507, [34]-[42] (Livesey P and David JA).
Nonetheless, as each case must inevitably depend on its own particular facts and circumstances, it is unwise to predict how or in what way this Court might exercise its discretion on an application for permission to appeal against an acquittal in advance, disengaged from the particular facts and circumstances of the case before it. The breadth of the appeal power cannot alter this Court’s reluctance to entertain an appeal against an acquittal, coupled with the need to face up to the implications of observing the common law principles against double jeopardy, which combine to require that the prosecution clearly establish that the case is rare and exceptional before a grant of permission to appeal will be countenanced. Those circumstances may raise, for example, the need to consider the principled intervention of this Court to address an error or outcome that has the capacity to undermine public confidence in the administration of justice.
An appeal by way of rehearing?
The submissions from the parties revealed disagreement about whether this appeal should be conducted by way of rehearing.
The Director, based on the ruling of this Court in R v Fitzgerald and the Joint Criminal Rules 2020 (SA), submitted that the appeal was by way of rehearing.[33] The respondent challenged this, contending that this Court’s consideration of the sole ground of appeal did not involve a rehearing of the case in the sense that the Court was not required to make its own findings of fact, or draw its own inferences from the evidence, or disregard or overturn any of the findings made or inferences drawn by the trial judge. Out of an abundance of caution, the respondent formally submitted that R v Fitzgerald was, on this issue, wrongly decided.
[33] R v Fitzgerald (2023) 307 A Crim R 101, [19] (Doyle, Bleby and David JJA), referring to the Joint Criminal Rules 2022 (SA), r 204.2(1).
In the circumstances of this case, it is again not necessary to finally rule on the apparent disagreement between the parties concerning this issue. Again, some observations may nonetheless be made.
It is well recognised that the expression “appeal by way of rehearing” is somewhat protean in nature and, like the word “appeal”, much may depend on the context in which it is used.[34] Briefly, and subject to the terms of the statute conferring the requisite appeal right, the courts usually recognise three kinds of appeals:
(1) appeals stricto sensu or in the strict sense;
(2) appeals by way of rehearing; and
(3) appeals or hearings de novo.[35]
[34] Powell v Streatham Manor Nursing Home [1935] AC 243, 249 (Lord Sankey LC); Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, 620 (Mason J, with whom Barwick CJ and Stephen J agreed), 625 (Jacobs J), 630 (Murphy J); Belle v Chiropractors Board of SA [2006] SASC 250, [6]-[7] (Debelle J).
[35] Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124, [2] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573, [57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297‑298 (Glass JA); Wigg v Architects Board of SA (1984) 36 SASR 111, 112-116 (Cox J); DM & AJ Bell Pty Ltd v Motor Fuel Licensing Appeal Tribunal (1988) 50 SASR 39, 43 (King CJ); T v Medical Board of South Australia (1992) 58 SASR 382, 389-390.
The question on an appeal in the strict sense is whether the order appealed from was correct on the material before the lower court or tribunal. The question on an appeal by way of rehearing is whether the order appealed from was affected by a material error made by the lower court or tribunal, and this is determined at the time of the appeal. The appeal court gives judgment on an appeal by way of rehearing as if it were the court or tribunal at first instance. On an appeal de novo, the appeal court hears the matter afresh. There is no suggestion that a hearing de novo is in contemplation in this case.
Unlike an appeal in the strict sense, an appeal by way of rehearing will usually be decided on the law as it is at the time of the appeal, rather than the law as it was at the time of the earlier hearing. In addition, on an appeal by way of rehearing there may or may not be a right, conferred by statute or the rules of court, to invite the appeal court to receive fresh or further evidence.[36]
[36] Fox v Percy (2003) 214 CLR 118, [20]-[22] (Gleeson CJ, Gummow and Kirby JJ).
Naturally, a statutory right of appeal may not precisely fit these three classic categories, and the legislature is at liberty to create a hybrid that has one or more features from each category.[37]
[37] Belle v Chiropractors Board of SA [2006] SASC 250, [8] (Debelle J).
The disagreement in this case may really be about the potential breadth of an appeal by way of rehearing, as distinct from the task actually set for this Court by the terms of the Director’s application in this case. Whatever the theoretical difference between an appeal by way of rehearing and an appeal in the strict sense, those differences are not raised by the present application. This case does not raise any issue about the state of the law at the time of the trial and whether it changed by the time of this appeal, and there is no application to put further evidence before the Court (whether or not it is properly described as fresh evidence).[38]
[38] Criminal Procedure Act 1921 (SA), s 157(1)(a).
Where considerations such as these are in prospect, they may be particularly relevant to considerations of double jeopardy, and whether it is appropriate to grant the prosecution permission to appeal, rather than whether the appeal is properly to be regarded as an appeal by way of rehearing. That may be a particularly relevant consideration where the prosecution seeks to address, for example, a deficiency in the evidence it offered at trial in proof of the offending alleged.
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”.
After the intersection with Nelson Street, but before the intersection with Commercial Road, there was a pedestrian crossing. The crossing was just to the east (or past) Robe Street. The crossing was opposite the City of Port Adelaide Enfield Civic Centre.
As the respondent approached that crossing, the lights at the pedestrian crossing turned from green to amber and, after three seconds, to red.
Around two seconds after the pedestrian lights turned to red, the green walk signal for pedestrians at the crossing commenced.[41] The deceased, Ms Helen Denise Minerds, stepped onto the roadway to cross St Vincent Street at the pedestrian crossing, walking towards the Civic Centre.[42]
[41] R v Donovan [2023] SADC 152, [125] (5).
[42] R v Donovan [2023] SADC 152, [125] (8).
The trial judge was unable to find that Ms Minerds did not step out onto the roadway until only after the green walking man signal illuminated in her favour. She may have done so at the exact moment it illuminated, or milliseconds before, in anticipation of it occurring. The trial judge did not regard Ms Minerds as being at fault because there was no doubt that the traffic lights for vehicles travelling in the same direction as the accused were showing red when she stepped out onto the roadway.[43]
[43] R v Donovan [2023] SADC 152, [138].
The respondent did not see the lights at the crossing turn from green to amber and then to red. He struck Ms Minerds, propelling her backwards. Ms Minerds hit her head and later died in hospital.[44]
[44] R v Donovan [2023] SADC 152, [10], [125] (8)-(10), [143].
The respondent was not using or handling a mobile telephone or satellite navigation device. He was not affected by drugs or alcohol. There was nothing mechanically wrong with the respondent’s vehicle which contributed to the motor accident. He was wearing contact lenses as his licence conditions required.[45]
[45] R v Donovan [2023] SADC 152, [125] (11).
The evidence of the respondent was that he found St Vincent Street confusing because of the number of traffic lights and activity on and near the roadway. The impression of the trial judge, based on the evidence and aided by her view, was that the relevant stretch of roadway was busy, with a number of signs along the footpath, including parking signs, speed limit signs, information and street name signs as well as trees, buildings, parked cars, pedestrians and two sets of traffic lights close to one another.[46]
[46] R v Donovan [2023] SADC 152, [142].
The trial judge accepted the respondent’s evidence that he did not see the pedestrian traffic lights turn from green to amber, and then to red, and that he did not realise that there was a pedestrian crossing.[47]
[47] R v Donovan [2023] SADC 152, [143].
Important intermediate factual findings
The trial judge made a number of important intermediate factual findings which must be noticed. These findings must be understood in the context that it was the prosecution case that the respondent had failed to maintain an adequate lookout, and that his degree of inattention was more than a momentary lapse of concentration and was so gross as to amount to dangerous driving.[48]
[48] R v Donovan [2023] SADC 152, [13].
Moreover, the prosecution case was not based on whether the respondent should have seen Ms Minerds but, instead, the relevant fault in his driving was his failure to see the red light at the pedestrian crossing.[49]
[49] R v Donovan [2023] SADC 152, [114].
The first important intermediate finding was that it was a reasonable possibility and highly likely that the respondent was close to the stop line of the pedestrian crossing when Ms Minerds stepped out onto it. The trial judge found that Ms Minerds took no more than three steps onto the roadway, and more likely only two steps, before being struck. Once he saw Ms Minerds on the roadway in front of him, the respondent immediately applied his brakes, just before impact.[50]
[50] R v Donovan [2023] SADC 152, [148].

Second, there was no evidentiary basis for a finding that the respondent’s defective lookout included failing to see Ms Minerds on the roadway at a time when his vehicle was at a distance that a reasonable person in his position would have seen her, and in time to take effective evasive action to avoid the motor accident.[51]
[51] R v Donovan [2023] SADC 152, [149].
Third, the trial judge was satisfied that the respondent’s defective lookout was solely referrable to his failure to see the pedestrian lights change to red.[52]
[52] R v Donovan [2023] SADC 152, [150]. In so far as there is a tension between this finding and the next, it must be resolved on the basis that the case was conducted, and that findings were made, assuming that the defective lookout included the period when the amber lights should have been seen. No suggestion was made on appeal that this finding suggested material error.
Fourth, when taken with the period of the amber light and the likely movements of Ms Minerds, the respondent’s lookout was defective for something in the order of five seconds before Ms Minerds stepped out onto the roadway.[53]
[53] That is, the period when the lights went from amber to red (3 seconds) and when they were red (2 seconds) before the green walking man illuminated for Ms Minerds, R v Donovan [2023] SADC 152, [150].
Fifth, the prosecution had not excluded the reasonable possibility that Ms Minerds stepped out onto the roadway when the respondent’s vehicle was in a position where, notwithstanding his slow speed, he was unable to avoid a collision.[54] The effect of this finding, together with the second intermediate finding, was to confine the case on the respondent’s defective lookout to his failure to see the lights change to amber and then red.[55]
[54] R v Donovan [2023] SADC 152, [150].
[55] R v Donovan [2023] SADC 152, [152].
Finally, and importantly, the trial judge accepted the respondent’s explanation for his defective lookout:[56]
I accept the accused’s plausible explanation for his defective lookout. That explanation was that, although he was looking in the direction of the traffic lights and therefore ought to have seen they had turned red, he did not do so because his attention was focussed on the traffic lights at the Commercial Road and St Vincent Steet intersection. Both sets of lights were within close proximity of each other. Having attended the scene, I am satisfied that a reasonable person in the position of the accused could have made this mistake.
[56] R v Donovan [2023] SADC 152, [151].
The trial judge had earlier referred to the evidence of Sergeant Fulcher, who prepared a motor accident reconstruction report, that there is a well-known phenomenon called “the see through effect”. That occurs when there are two sets of traffic lights within close proximity and the driver’s focus can be drawn to the set of traffic lights furthest away and, as a consequence, the driver fails to see the lights closest. Sergeant Fulcher agreed that this was a well-known theory in the reconstruction industry but more of an engineering phenomenon.[57]
[57] R v Donovan [2023] SADC 152, [89].
Having regard to the evidence before her, and the intermediate factual findings she made, the trial judge posed “the question to be answered” as whether the prosecution had proved beyond reasonable doubt that the respondent’s failure to notice that the pedestrian lights had turned amber and then red at some time during a period of less than seven seconds, and probably around five seconds, amounted to driving in a manner dangerous to the public.[58] As has been seen, the Director was content to argue the case on the basis that this was the relevant question to be answered.
[58] R v Donovan [2023] SADC 152, [152].
Driving without due care and dangerous driving
The trial judge considered in some detail whether there had been a departure from the standard of care expected of a reasonably prudent driver which was dangerous, in the sense that it involved a risk of injury to others which exceeded the ordinary risks of the road.[59]
[59] R v Donovan [2023] SADC 152, [153]-[154].
The trial judge commenced with the proposition that driving without due care required a departure from the standard of care expected of a reasonably prudent driver in the position of the accused, as was appropriate to the circumstances.[60]
[60] R v Donovan [2023] SADC 152, [153]; Police v Melisi (2010) 106 SASR 105.
By contrast, proof that an accused drove in a manner dangerous required proof beyond reasonable doubt that the accused’s manner of driving would be recognised by a reasonable person in the situation of the accused as dangerous, in that it involved a risk of injury to others which exceeded the ordinary risks of the road and amounted to a real danger to the public.[61]
[61] R v Donovan [2023] SADC 152, [154].
The trial judge directed herself that, though the consequences of the accused’s driving were devastating and catastrophic for Ms Minerds and her family, as a matter of law that did not play a role in the objective assessment of the driving and whether it constituted driving in a manner dangerous. That qualitative assessment was to be determined by reference to the evidence of the manner of driving and the circumstances in which it occurred.[62]
[62] R v Donovan [2023] SADC 152, [155].
This aspect of the direction appears to have been drawn from McBride v The Queen, where Barwick CJ said:[63]
This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section.
[63] McBride v The Queen (1966) 115 CLR 44, 50 (Barwick CJ).
Chief Justice Barwick drew a sharp contrast in that case with negligence which required a breach of duty, however grave, having significance only if “damage is caused thereby”.[64] Barwick CJ explained that the statutory offence required a serious breach of the proper conduct of a vehicle on the highway, “so serious as to be in reality and not speculatively, potentially dangerous to others”.[65]
[64] McBride v The Queen (1966) 115 CLR 44, 50 (Barwick CJ).
[65] McBride v The Queen (1966) 115 CLR 44, 50 (Barwick CJ).
The trial judge had regard to a number of other authorities to which it will be necessary to return.[66] After directing herself as to the law, the trial judge concluded that she was satisfied that the accused’s lookout was defective because he did not notice the pedestrian lights change from green to amber, and then to red, at any time during the 5 seconds over which that occurred, and before Ms Minerds stepped out onto the roadway. As her Honour described it:[67]
Had [the accused] been exercising due care and attention he would have noticed at some point prior to reaching the crossing that the pedestrian lights had changed. However, there was an explanation for his defective lookout. His attention was focussed upon the lights at the intersection of Commercial Road and St Vincent Street. Given the proximity of the respective traffic lights and the destination address, this is a plausible explanation for his defective lookout.
[66] Including R v Coventry [1938] SASR 79; R v Coventry (1938) 59 CLR 633; R v Mayne (1975) 11 SASR 583; R v Kamleh (1990) 51 A Crim R 435 and Jiminez v R (1992) 173 CLR 572.
[67] R v Donovan [2023] SADC 152, [163].
The trial judge held that the gravamen of the respondent’s departure from the appropriate standard of driving was the failure, by reason of defective lookout, to notice the change in lights. The reason given for this served to “explain, but not excuse” the defective lookout.[68]
[68] R v Donovan [2023] SADC 152, [166].
In finding the respondent not guilty of the offence of dangerous driving, the trial judge concluded:[69]
The accused’s manner of driving was in the category of a common human failing. It was an ordinary, humanly understandable departure from the strict standard of care, notwithstanding the catastrophic and devastating outcome.[70] The prosecution has not proved beyond reasonable doubt that there was any aspect of the accused’s driving that subjected the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention.
[69] R v Donovan [2023] SADC 152, [168].
[70] For other examples of a driving without due care constituted by a defective lookout, including failing to see a red traffic light, see McCandless v Police [2021] SASC 98, Bliss v R (1993) 173 LSJS 256, R v Lenarczyk [2015] SADC 95, Sprigg v Police [2011] SASC 10, Fritsch v Police [2012] SASC 54, Wimmer v Police [2013] SASC 95, Thiele v Police [2009] SASC 159, Police v Jachmann [2010] SASC 345 and Nagy v Police [2018] SASC 141.
Accordingly, an acquittal was entered to the charge of dangerous driving and the respondent was subsequently sentenced for aggravated driving without due care.
The contentions of the parties
The essence of the Director’s case was that a consideration of the trial judge’s reasons demonstrated that she had erred in her ultimate assessment and characterisation of the driving. As the Director put it, the factual findings made by the trial judge amounted to driving in a manner dangerous.[71]
[71] Written submissions of applicant dated 7 March 2024, [45].
The Director submitted that the reasoning and conclusion of the trial judge indicated a failure to engage in a process that evaluated the evidence against the relevant criteria in the relevant context. That is to say, whether or not the driving as alleged by the prosecution, considered in line with the applicable principles, proved the respondent guilty of the charged offence on the facts as found. The Director’s submissions attacked the notion that the risk of a collision on a pedestrian crossing could ever be regarded as one of the “ordinary risks” that exists for road users:[72]
In the circumstances of this case, the act of striking a pedestrian crossing the road at a pedestrian crossing, in circumstances where the lights had gone from amber to red and the green pedestrian light had come on, with a car travelling at the upper limit of the applicable speed limit without breaking or taking any other evasive or avoidant action, cannot be seen to fall within the “ordinary risks” that exist for road users.
To so hold would mean it is an “ordinary risk” that pedestrians, as road users, must accept that, when crossing at pedestrian crossings with stale red traffic lights and green pedestrian lights, cars may ignore the red lights in breach of the road rules and fail to stop or even slow down sufficiently to avoid a collision.
[72] Written submissions of applicant dated 7 March 2024, [49]-[50].
The Director contended that there was no obstacle or impediment to the respondent seeing the crossing and the lights that controlled it. Rather, the respondent simply failed to pay adequate attention to his surroundings when approaching the crossing.
The Director also contended that the speed at which the respondent was estimated to be travelling at the point of collision, between 32 and 42 kph, allowed greater opportunity to be aware of and pay attention to his surroundings.
Whilst it could not be disputed that the stretch of roadway contained a number of features, including building store fronts, vehicles and other people, it could not be said that this was a complicated stretch of roadway or an intersection that might require greater attention.
In the submission of the Director, the respondent’s evidence that he was focussed on the next set of lights was “neither justification nor excuse” for his driving. The ordinary driver in the circumstances of the respondent who was unfamiliar with the stretch of roadway was required to show attention and diligence. Accordingly:[73]
The failure of the respondent to take notice of the red pedestrian crossing light and, as a result, drive through the crossing, created a risk over and above that ordinarily associated with the driving of a motor vehicle.[74] The gravity of the risk is plain from the consequences that followed upon the respondent driving through the crossing.
[73] Written submissions of the applicant dated 7 March 2024, [57].
[74] See Jiminez v The Queen (1992) 173 CLR 572, 579 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ).
The Director submitted that where the driving in a manner dangerous was manifested through gross inattention, or momentary or casual error, rather than protracted or deliberate conduct, that did not alter the objective fact that the respondent’s driving was, at law, “driving in a manner dangerous to the public”.
The Director also submitted that, when the trial judge’s reasons were considered alongside the whole of the evidence, there was revealed an error of law that warranted this Court’s intervention. Notwithstanding the principles of double jeopardy, the Director contended that public policy and the interests of justice demanded that permission to appeal be granted and that the appeal be allowed.[75]
[75] R v Garner; R v Webb [2021] SASCA 68, [118] (Kelly P, Lovell and Bleby JJA).
In the course of his oral submissions, the Director illustrated the effect of the finding made by the trial judge regarding the period of the respondent’s inattention by outlining the usual calculation undertaken in cases such as these. That is to say, at a speed of between 32 and 42 kph, the respondent was travelling at between 8.8 and just over 11 metres per second, over a distance of between 44 metres and just over 55 metres.[76]
[76] Transcript of hearing 20 March 2024, p 8.27.
Although this way of putting the case had never been put to the trial judge, the Director submitted that travelling such a considerable distance, even at a low speed, without maintaining a proper lookout demonstrated that the respondent was driving in a manner dangerous.
For the respondent, the principles relating to double jeopardy were emphasised by reference to the authorities relied on by the Director, including R v Brougham,[77] and R v Garner; R v Webb,[78] especially the proposition that the question of permission to appeal involved issues ranging beyond those involved in the merits of the particular appeal before the court and that the “rare and exceptional” test should be rigorously applied.
[77] R v Brougham (2015) 122 SASR 546, [29]-[45] (Peek J, with whom Nicholson J agreed).
[78] R v Garner; R v Webb [2021] SASCA 68, [78]-[81] (Kelly P, Lovell and Bleby JJA).
On the question of rehearing, the respondent maintained that the appeal was an appeal stricto sensu with limited powers for receiving further evidence in the same way as an appeal against conviction brought pursuant to s 157(1)(a) of the CPA.[79]
[79] Written submissions of the respondent dated 13 March 2024, [49].
The respondent emphasised that he had already been vexed by the criminal justice process and sentenced for the offence of aggravated driving. He had served a significant portion of the good behaviour bond and licence disqualification.[80]
[80] Written submissions of the respondent dated 13 March 2024, [58].
The respondent submitted that the offence of which he had been acquitted, though serious, was not the most serious offending as it involved a momentary, accidental error.[81]
[81] Written submissions of the respondent dated 13 March 2024, [59].
The respondent attacked the failure by the Director to grapple with the intermediate findings of fact made by the trial judge. He submitted that this case required an evaluative judgment made on a matter about which reasonable minds could differ. It was not enough that the appeal court may prefer a different view to that taken by the primary judge,[82] because the trial judge was the constitutional tribunal of fact.
[82] Templeton v Australian Securities and Investments Commission (2015) 108 ACSR 545, [23] (Besanko, Middleton and Beach JJ).
The respondent took issue with a number of the factual submissions made by the Director, drawing on the suggested failure to give effect to the intermediate factual findings made by the trial judge. For example, insofar as the witness driving the truck behind the respondent said that he saw no brake lights, this was contrary to the finding that the respondent applied his brakes immediately before impact when he saw Ms Minerds on the road ahead.[83] In addition, the respondent submitted that, contrary to the Director’s submission, the trial judge did not find that the respondent’s car was travelling at the upper end of the applicable speed limit because the finding was that the respondent was travelling under the speed limit and maybe as slow as 32 kph.[84]
[83] Written submissions of the respondent dated 13 March 2024, [63].
[84] Written submissions of the respondent dated 13 March 2024, [67].
Finally, the respondent emphasised the unchallenged finding by the trial judge that the prosecution had not excluded the reasonable possibility that Ms Minerds stepped out onto the roadway when the respondent’s vehicle was already in a position where he was unable to avoid a collision.[85]
[85] Written submissions of the respondent dated 13 March 2024, [67].
The determination of the Director’s application for permission to appeal
By s 45(1) of the Road Traffic Act 1961 (SA), a person “must not drive a vehicle without due care or attention or without reasonable consideration of other persons using the road”.[86] This statutory obligation requires that a driver exercise the standard of care and attention expected of a reasonably prudent driver in the position of that driver. It follows that there will be a breach of s 45(1) if there is a failure to drive in accordance with the standard of care and attention that a reasonably prudent driver would exercise in the circumstances proved.[87]
[86] Road Traffic Act 1961 (SA), s 45(1).
[87] Police v Melisi (2010) 106 SASR 105, [17] (White J).
By contrast, proof of “dangerous driving” for the purposes of s 19A(1) of the CLCA requires, first, proof that the manner of driving involved a risk of injury which exceeded the ordinary risks of the road, or the risks ordinarily associated with the driving of a motor vehicle and, in addition, that the manner of driving amounted to a real danger to others.[88] This standard direction given in dangerous driving cases by trial judges in South Australia can be traced to the decision of the Court of Criminal Appeal in R v Coventry where the following was said:[89]
The fact to be proved … was that the defendant was driving in a manner which was dangerous to the public, and if it is necessary to attempt a definition we should say that driving in a manner dangerous to the public means the act of driving in a manner which any ordinary person (in the situation of the driver) would recognize as dangerous, in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road – the common place incidents of the use of the highway in question under the conditions of modern transport by fast moving vehicles.
[88] Jiminez v The Queen (1992) 173 CLR 572, 579 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron J).
[89] R v Coventry [1938] SASR 79, 86 (Murray CJ, Angas Parsons and Napier JJ).
In the High Court, no criticism was made of this direction and special leave to appeal was refused.[90] However the majority did not embrace all that was said by the Court of Criminal Appeal, including the suggestion that casual or transitory lapses could not amount to driving in a manner dangerous:[91]
It is, in our opinion, wrong to exclude an act or omission from “manner of driving” because it is casual or transitory in some senses in which these somewhat flexible words may be understood. Such an exclusion may even suggest that carelessness or inattention may constitute a defence to a charge under the relevant provision of the section. Sudden, even though mistaken, action in a critical situation may not, in all the circumstances of a case, constitute driving to the danger of the public. But casual behaviour on the roads and momentary lapses of attention, if they result in danger to the public, are not outside the prohibition of that provision merely because they are casual or momentary. Further, “manner of driving” includes, in our opinion, all matters connected with the management and control of a car by a driver when it is being driven. It includes starting and stopping, signalling or failing to signal, and sounding a warning or failing to sound a warning, as well as other matters affecting the speed at which and the course in which the car is driven.
[90] R v Coventry (1938) 59 CLR 633, 638-639 (Latham CJ, Rich, Dixon and McTiernan JJ).
[91] R v Coventry (1938) 59 CLR 633, 638-639 (Latham CJ, Rich, Dixon and McTiernan JJ).

In separate reasons, Starke J emphasised the objective nature of the requisite statutory standard, and the need for an evaluation which depends upon all the circumstances of the case:[92]
The offence is established if it be proved that the acts of the driver create a danger, real or potential, to the public. Advertence to the danger on the part of the driver is not essential; all that is essential is proof that the acts of the driver constitute danger, real or potential, to the public. But whether such danger exists depends upon all the circumstances of the case, e.g., the character and condition of the roadway, the amount and nature of the traffic that might be expected, the speed of the motor vehicle, the observance of traffic signals, the condition of the driver’s car, especially if he knew, for instance, that his brakes were out of order and so forth. Substantially, the judgment on appeal accords with this view. “Upon a charge of driving at a speed or in a manner which is dangerous to the public the prosecution is not so much concerned with the state of the defendant's mind as with his conduct. The essence of this charge is the objective fact—the risk of injury to others.” And, citing McCrone v. Riding: “That standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway” (See Andrews v. Director of Public Prosecutions; Kingman v. Seager). [citations omitted]
[92] R v Coventry (1938) 59 CLR 633, 639 (Starke J).
In The Queen v Mayne,[93] Bray CJ explained that since R v Coventry juries had been directed by reference to that part of the decision of the Court of Criminal Appeal already set out. Bray CJ gave, as an example, the direction Napier CJ gave to a jury in The Queen v Duncan.[94]
[93] The Queen v Mayne (1975) 11 SASR 583, 585 (Bray CJ, with whom Hogarth and Jacobs JJ agreed).
[94] The Queen v Duncan (1953) 11 SASR 592 (Napier CJ).
That approach has since been followed in cases such as Kamleh v The Queen, where King CJ explained:[95]
The question is not whether the accused intended to drive, or appreciated that he was driving, in a manner dangerous to the public but whether, in the judgment of the jury, a reasonable person in the situation of the driver would have appreciated that he was driving in a manner dangerous to the public.
The crime is committed by the act of driving in a manner which any reasonable person in the situation of the driver would recognise as dangerous in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public. Ordinary risks of the road include those arising from the sort of faulty driving and lack of care which must be expected, due to human frailty, from time to time, from the ordinary driver. The sort of driving which constitutes this crime is more serious than that. It is driving which a reasonable person in the situation of the driver would understand to be such as would give rise to a serious risk of injury to members of the public going beyond the ordinary risks of the road. It is driving which is therefore fit to be regarded as a serious crime. If the driving, although negligent, does not go beyond what might fairly be regarded as an ordinary risk of the road, a crime of causing death or bodily injury by dangerous driving is not committed but the driver is guilty of driving without due care or attention contrary to s 45 of the Road Traffic Act 1961 (SA), a verdict of guilty of which offence is open to the jury by virtue of s 19b(2) of the Criminal Law Consolidation Act 1935 (SA).
[95] Kamleh v The Queen (1990) 51 A Crim R 435, 436-437 (King CJ, with whom White and Mohr JJ agreed).
In Kroon v The Queen, the effect of the authorities was summarised by King CJ in the following passage:[96]
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.
[96] Kroon v The Queen (1990) 55 SASR 476, 477-478 (King CJ, with whom Mohr J agreed).
The same approach was later followed by the Court of Criminal Appeal in R v Hendriksen.[97] More recently, the High Court has drawn a distinction between the terms of the statutory offence, and the way in which, at times, there has been a tendency to incorporate negligence into the analysis of dangerous driving. In King v The Queen,[98] the High Court rejected the proposition that negligence was necessarily an element of dangerous driving. The Court had before it the offence of dangerous driving causing death or serious injury under s 319 of the Crimes Act 1958 (Vic). In considering the meaning of “dangerous”, the High Court explained that there may be dangerous driving even if there is no negligence:[99]
Having regard to the ordinary meaning of the word, its context in s 319 and the purpose of s 319, as explained in the Second Reading Speech, negligence is not a necessary element of dangerous driving causing death or serious injury. Negligence may and, in many if not most cases will, underlie dangerous driving. But a person may drive with care and skill and yet drive dangerously. It is not appropriate to treat dangerousness as covering an interval in the range of negligent driving which is of lesser degree than driving which is “grossly negligent” within the meaning of s 318(2)(b) of the CrimesAct. The offence created by s 319 nevertheless takes its place in a coherent hierarchy of offences relating to death or serious injury arising out of motor vehicle accidents. It is not necessary to that coherence that the terms of the section be embellished by reading into them a requirement for proof of some species of criminal negligence.
[97] R v Hendriksen (2007) 98 SASR 571, [2]-[6] (Doyle CJ, with whom Kelly J agreed), [61]-[64] (Layton J).
[98] King v The Queen (2012) 245 CLR 588.
[99] King v The Queen (2012) CLR 588, [38] (French CJ, Crennan and Kiefel JJ).
In that case the High Court overruled R v De Montero,[100] where the Victorian Court of Appeal had held that a jury should be directed “that while dangerous driving necessarily involves criminal negligence, it need not, like culpable driving, be grossly negligent, but … must involve a serious breach of the proper management or control of the vehicle on the roadway”.[101] The High Court held that this direction “misstated the concept of dangerous driving causing death by requiring an element of negligence”.[102] Accordingly, whilst negligence may “in many if not most cases”[103] underlie dangerous driving, that is not invariably so. An example of the driver who is driving dangerously, despite driving with care and skill, is the experienced racing driver traveling at very high speed in a built-up area.
[100] R v De Montero (2009) 25 VR 694.
[101] R v De Montero (2009) 25 VR 694, [81] (Ashley, Redlich and Weinberg JJA).
[102] King v The Queen (2012) CLR 588, [39] (French CJ, Crennan and Kiefel JJ).
[103] King v The Queen (2012) CLR 588, [38] (French CJ, Crennan and Kiefel JJ).
Drawing on King v The Queen, but without suggesting that R v Coventry should be departed from, the Director submitted that the preferable direction – whether for a judge sitting alone or for a jury – should concentrate on the elements of the s 19A(1) CLCA offence rather than resort to notions of negligence. Whilst the concern underlying this submission is understandable, the existing approach presents no difficulty provided the elements of the offence are faithfully addressed, and provided the directions adhere to the circumstances of the case before the court, addressing the real issues in contention.[104] The example of negligence may, in an appropriate case, be the easiest means of illustrating dangerous driving. The direction struck down in King v The Queen suffered from the vice of suggesting that dangerous driving necessarily involved criminal negligence.
[104] Alford v Magee (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ); see also Hinrichsen v The King [2023] SASCA 111, [54]-[63] (Livesey P), [368] (Lovell and Doyle JJA).
There are well-known examples of cases where the prosecution has failed to prove dangerous driving notwithstanding proof of a defective lookout. Though it may be of some assistance to consider them, a review of these cases does not demonstrate any overarching standard or approach to be applied, because the outcome in each case necessarily turned on its own particular facts and circumstances.
For example, in England v R,[105] a driver was acquitted by the Court of Criminal Appeal of dangerous driving, and a conviction for driving without due care was substituted. The appellant in that case was driving in fog along a country road in a 110 km/h zone at around 70 km/h, 10 km/h faster than the trial judge thought was a safe speed, when he collided with a trailer on the rear of a tractor, killing the driver of the tractor. Whilst the Court accepted that there was a departure by the appellant from the standard of care expected of ordinary prudent drivers, the circumstances were made difficult by the foggy conditions and the fact that the trailer on the rear of the tractor was without proper lighting.[106] As King CJ explained:[107]
The question is whether the degree of the departure by the appellant from the standard of care and attention to be expected of an ordinary prudent driver, exceeded that which is present in the sort of faulty driving into which ordinary drivers may occasionally lapse due to carelessness or inattention, and whether it reaches a degree of gravity which any reasonable driver ought to appreciate imposes on members of the public a real danger, going beyond the dangers of the road which result from ordinary carelessness and inattention, thereby amounting to a serious crime.
[105] England v R (1991) 14 MVR 187 (delivered 19 June 1991) (King CJ, with whom Cox and Bollen JJ agreed).
[106] England v R (1991) 14 MVR 187, 191 (delivered 19 June 1991) (King CJ, with whom Cox and Bollen JJ agreed).
[107] England v R (1991) 14 MVR 187, 190 (King CJ, with whom Cox and Bollen JJ agreed).
After pointing out that the relevant speed limit was 110 km/h, and notwithstanding the finding that a safe speed limit would have been 60 km/h, King CJ was not prepared to conclude that the failure to maintain an adequate lookout was in these circumstances such a grave departure from the standard of care as to justify a conviction for dangerous driving.
Similarly, in Bliss v R, the Court of Criminal Appeal again allowed an appeal and set aside a conviction, substituting a conviction for driving without due care.[108] Mullighan J, with whom Bollen and Duggan JJ agreed, cited the observations of King CJ in Kroon v The Queen, referred to earlier.[109] In that case, the motor accident occurred just after dark at an intersection near Mount Gambier. The appellant approached the intersection at a relatively slow speed and failed to yield right of way. In the resulting motor accident, the other driver sustained serious injuries. Though there was a suggestion of alcohol consumption, in the absence of expert evidence, the Court held that this should have been left out of account. The Court found that the only complaint to be levelled at the appellant was defective lookout, “a common complaint about all drivers at some stage”, and this was incapable of establishing dangerous driving as distinct from driving without due care.
[108] Bliss v R (1993) 173 LSJS 255 (Mullighan J, with whom Bollen and Duggan JJ agreed).
[109] Kroon v The Queen (1991) 55 SASR 476, 477-478.
These cases demonstrate that for the prosecution to make out dangerous driving, it is necessary to do more than demonstrate a want of care and attention. It is necessary for the prosecution to demonstrate beyond reasonable doubt that the driving was dangerous in the sense that it subjected the public to a risk over and above that ordinarily associated with the driving of a motor vehicle. Those ordinary risks include driving which may, on occasion, include a failure to exhibit due care and attention.[110]
[110] Jiminez v The Queen (1992) 173 CLR 572, 579 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ); King v The Queen (2012) 245 CLR 588, [31], [38]-[39] (French CJ, Crennan and Kiefel JJ).
The uncontested findings made by the trial judge in this case included her acceptance of the evidence of the respondent that he found St Vincent Street confusing, as well as her findings associated with the relevant stretch of roadway: namely, that it was busy, with a number of shop fronts, signs along the footpath, including parking signs, speed limit signs, information and street name signs as well as trees, buildings, parked cars, pedestrians and two sets of traffic lights close to one another.[111]
[111] R v Donovan [2023] SADC 152, [142].
On these uncontested findings, the Director contended that a different conclusion necessarily had to be reached. That contention must be rejected. It is not for the appeal court to hear the matter afresh and without regard to the fact‑finding and conclusion reached by the constitutional trier of fact. The task for this Court is to identify material error. Here, the suggested error is that it was not open to the trial judge on the facts as found 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 analysis undertaken by the trier of fact in a case such as this is necessarily “facts-specific”, dependent on the impression created by the witnesses and the facts established by the evidence. This case provides a good example of an evaluative decision which has been made without any demonstrated error of law or principle, and about which reasonable minds may differ as to the outcome. Whether we would have come to the same conclusion is not the test.
There is no challenge to any primary or intermediate factual findings. An independent review of the record by this Court – including the findings made – cannot replicate all of the advantages available to the trial court as the trial unfolded. Those advantages included seeing and hearing the witnesses give their evidence, including the respondent giving his evidence, and the effect that undertaking the view had on the court’s understanding and appreciation of the evidence. The facts of this case do not demand only one outcome, with the result that the failure to decide the case in accordance with that outcome demonstrates an error of law. It cannot be said that the conclusion reached by the trial judge was in this case not open to her or that it was necessarily wrong.
Even if there were room to doubt whether an acquittal was open to the trier of fact in this case, this is also a good example of a case where 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. The Director is dissatisfied with the outcome. However, where no material error of law or principle can be identified in connection with the acquittal, and the Director cannot demonstrate that any question of high public policy is involved, it is difficult to see why a contention about the merits is sufficient to overcome the common law principles against double jeopardy.
None of this is to deprecate the importance of driving safely, still less the need to respect and vindicate the importance of the life of Ms Minerds.
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.