R v Ducaj - [2018] SADC 146

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DUCAJ
Criminal Trial by Judge Alone
[2018] SADC 146
Reasons for the Verdict of Her Honour Judge S David
20 December 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Accused charged with Aggravated Creating Likelihood of Harm and in the alternative Hindering Police - police attended at a premises being used to cultivate cannabis - accused at the premises and when approached by police left the premises by driving a van into and over the gates of the premises - whether accused's act of driving was likely to cause harm to a police officer - whether mental elements of the offence proved.
Held: Accused guilty of offence of Aggravated Creating Likelihood of Harm.
Criminal Law Consolidation Act 1935 (SA) ss 21 and 29(3); Summary Offences Act 1953 (SA) s 6(2), referred to.
R v Abdul-Rasool (2008) 18 VR 586; Nelson v Police [2011] SASC 55; R v Parenzee (2008) 101 SASR 469; R v Shah [2018] SASCFC 90; Leonard v Morris (1975) 10 SASR 528, considered.

R v DUCAJ
[2018] SADC 146

Albert Ducaj (‘the accused’) is charged with the offence of Aggravated Creating Likelihood of Harm[1] and, in the alternative, Hinder Police.[2] The accused pleaded not guilty to the charges and elected for trial without a jury. I now publish reasons for the verdict I deliver.
[1] Contrary to Criminal Law Consolidation Act1935 (SA), s 29(3).
[2] Contrary to Summary Offences Act 1953 (SA), s 6(2).
Overview
On Saturday 14 January 2017, police officers Constable Walker (‘Walker’) and Brevet Sergeant Leahy (‘Leahy’) attended at 119 Churchill Road, Prospect (‘the premises’) having received information that there might be cannabis at the premises. The police officers knocked on the front door of the house, and received no answer. They became aware of a person at the rear of the premises. To obtain a better view, the police officers drove their patrol car into Laburnum Avenue, a road running behind the premises. Upon looking over the back fence, they saw the accused in the rear garden of the premises. Police officers called out to the accused who responded by saying he was a cleaner, and he would go inside and obtain identification.
Walker returned to the front of the premises and, on the prosecution case, walked down the driveway and positioned himself about one metre from some locked gates. The gates were located in the middle of the driveway. They were attached to the house, on one side, and to the fence line of the adjoining property on the other side, and secured by a padlock in the middle. The gates consisted of metal vertical bars, with a space between each bar.
Leahy remained at the rear of the premises, and saw the accused emerging from a hole in the roof. She called out to the accused but received no response. Leahy next saw the accused approach a van parked in the rear yard of the premises. The van was facing away from the driveway. She heard the accused start the engine of the van. Leahy then used the police radio to advise Walker that the van was heading to the front of the property. The accused manoeuvred the van around the corner of the house so it was facing towards Churchill Road. The accused accelerated the van along the driveway, into the gate, and over the gate and some brickwork which had become detached from the house, before turning left onto Churchill Road. There was a divergence in the evidence as to whether the car stalled when it collided with the gate.
On the prosecution case, Walker was standing in the driveway, close to the gate, as the accused accelerated the van into the gate and over the gate, and, to avoid being hit, he was forced to take evasive action by diving out of the way of the van.
Other police officers subsequently attended at the premises, and upon searching inside the home, located a cannabis hydroponic grow room and the remnants of cannabis plants. The premises is a rental property owned by Frank and Enna Aloe.[3] The vehicle driven by the accused was a van owned by a business named Complete Van and Ute Hire[4] and was hired by the accused on 14 January 2017.[5]
[3] Exhibit P5, Agreed Facts [1].
[4] Exhibit P5, Agreed Facts [4].
[5] Exhibit P5, Agreed Facts [6].
The accused was apprehended and arrested by police later that day.
At trial, the prosecution called evidence from Walker and Leahy and a neighbour, Mr Gary Green (‘Green’), who resided at the adjoining property.[6] Green was an eyewitness to much of the alleged offending.
[6] Exhibit P5, Agreed Facts [3].
The accused did not give evidence at trial.
The issue at trial on the first count was whether the prosecution has proved beyond reasonable doubt that the accused’s act in driving the van into, and over the gate, was likely to cause harm to Walker. The mental elements of the offence were also in dispute. On the defence case, the prosecution has not proved that the accused’s act of driving was likely to cause harm to Walker, and the prosecution has not proved that the accused knew his act of driving was likely to cause harm to another, and positively intended to cause harm to another, or, was recklessly indifferent as to whether such harm is caused.
In the alternative, the prosecution alleges that the accused has committed the offence of hindering police by driving away from the premises while the police were trying to speak to him.
Elements of the offences
The offence of Aggravated Creating Likelihood of Harm consists of five elements, each of which the prosecution must prove beyond reasonable doubt for the accused to be convicted of the offence.
First, the prosecution must prove that the accused consciously and deliberately performed an act which was likely to cause harm to another. In this case, the alleged act is the accused driving the van from the rear of the premises into, and over, the gates and onto Churchill Road. An unconscious, accidental or non-deliberate act is not sufficient. The act need not in fact cause harm to any person. In deciding whether the act in question was likely to cause harm to another person, the test is objective. The question is whether the act creates a real or substantial risk of harm, as opposed to a fanciful or remote risk or a risk contingent upon the occurrence of some unsubstantiated conduct or speculative circumstance or event that is yet to exist or of which there is no immediate prospect.[7]
[7] R v Parenzee (2008) 101 SASR 469 at [73]; R v Abdul-Rasool (2008) 18 VR 586 at [41].
‘Harm’ is defined to mean physical or mental harm (whether temporary or permanent).[8] Relevantly, physical harm includes unconsciousness and pain.[9]
[8] Criminal Law Consolidation Act1935 (SA), s 21.
[9] Criminal Law Consolidation Act 1935 (SA), s 21.
Second, the prosecution must prove that at the time of performing the relevant act the accused knew the act was likely to cause harm to another.
Third, the prosecution must prove that at the time of performing the relevant act, the accused either intended to cause harm to another, or was recklessly indifferent as to whether such harm is caused. An accused person is recklessly indifferent if, while not intending to cause harm to another, he knows that it is likely that his conduct will cause harm to another person, and not caring, engages in the conduct.[10] In other words, in respect of this third element in so far as it relates to reckless indifference, the prosecution must prove the accused engaged in conduct giving rise to a substantial risk of harm, and aware of that substantial risk of harm, decided to engage in the relevant conduct nevertheless.
[10] R v Shah [2018] SASCFC 90 at [10].
Fourth, the prosecution must prove that the act or omission was without lawful excuse. If the prosecution has proved beyond reasonable doubt the first three ingredients of the offence, the accused is not to be found guilty of the offence if he persuades the court, on the balance of probabilities, that he had a lawful excuse for his conduct. In this case, there is no evidence or suggestion of any lawful excuse.
Fifth, the prosecution alleges an aggravating factor, namely that the accused committed the offence against a police officer, knowing that the victim was acting in the course of his official duty. Walker was in police uniform at the time of the alleged offending.[11] Walker and Leahy drove a marked police vehicle to the premises.[12] Upon attending at the premises, both announced themselves as police officers.[13] There appears no dispute that the aggravating feature has been proved.
[11] T15.
[12] T15.
[13] T20.
As to the elements of the alternative offence of Hindering Police, the prosecution must prove the accused committed a positive act of interference or obstruction, which renders the duty of a police officer substantially more difficult, intending to make the police officer’s performance substantially more difficult, or being aware that the act was likely to render such performance substantially more difficult, and nevertheless performing the act, and that the other person was in fact a police officer.[14] In this case, the prosecution relies on the accused’s act in knowingly driving away from the premises at a time when the accused had been made aware that police officers Leahy and Walker wished to speak with him.
[14] Leonard v Morris (1975) 10 SASR 528 at 530-531.
Legal directions
I apply the following principles in reaching my verdict.
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving the charges lies wholly upon the prosecution. The accused is not obliged to prove anything.
Nothing short of proof beyond reasonable doubt will suffice. It is not enough for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of any offence, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the charge. In these reasons, if I use the words ‘proved’, ‘established’ or ‘satisfied’ I mean to a standard of proof beyond reasonable doubt. If I am satisfied there is an explanation consistent with the innocence of the accused, or I am unsure of where the truth lies, then I must find the charge has not been proved beyond reasonable doubt.
The accused elected not to give evidence. No adverse inference can be drawn against the accused for his legitimate election not to give evidence. It is still for the prosecution to prove beyond reasonable doubt the case against the accused.
A view was taken of the premises, and the surrounding areas, where the incident giving rise to the charges took place.[15] Observations made during the course of the view are not of themselves evidence but simply provide for a better understanding of the evidence presented in the trial. It is not permissible to substitute anything seen on the view for the evidence presented in the trial.
[15] T12-13; T85.
There was evidence that the police attended at the premises because they had received information that cannabis was being grown there. Subsequent investigations revealed the premises was a cannabis ‘grow house’. That evidence was relevant to the accused’s state of mind in driving into, and through the gate, and the mental elements of the first count. It is impermissible to reason that because the accused was located at a cannabis grow house, in a rental vehicle, and not responding to police requests to speak with him, that the accused is the sort of person who would be likely to commit the offence and therefore he is guilty of the charged offence or more likely to be guilty of the charged offence. I have not reasoned in that impermissible manner.
Matters not in dispute
The prosecution called evidence from three witnesses: Walker and Leahy, and the neighbour, Green. Much of their evidence was not in dispute, including the following factual circumstances drawn from that evidence.
1.   At about 2 pm, on 14 January 2017, Leahy and Walker attended at the premises.[16] The police vehicle was parked directly out the front of the premises on Churchill Road near a bus shelter.[17]
2.   Leahy knocked on the front door, and both police officers announced themselves as police.[18] There was no response.[19] The police officers knocked on the roller shutters and again loudly announced their presence.[20] Again, there was no response.[21] The police officers were attempting to alert any person inside the home to their presence.
3.   Walker went to a neighbouring property,[22] at which time Leahy made observations of a person in the back yard.[23] Leahy unsuccessfully tried to attract the attention of that person.[24]
4.   Both police officers drove in the police vehicle to Laburnum Avenue, and made observations from a gap between two rear sheds in the back yard.[25] They observed a van in the back yard.[26] They also saw the accused.[27] Leahy asked the accused what he was doing.[28] The accused said he was a cleaner performing some maintenance work, and he was going inside to get some identification.[29]
5.   Walker drove the police vehicle back to Churchill Road and again parked the car adjacent to the bus shelter.[30] Leahy remained in the same position. Leahy made a radio transmission to request assistance from other police officers.[31]
6.   Leahy next saw the accused appear through a hole in the roof.[32] She yelled out to the accused for him to get back inside the house, whereupon the accused looked at her, but did not acknowledge her.[33]
7.   Leahy then approached the north-eastern corner of the premises, at which location the premises shared a boundary with the neighbouring property.[34] Leahy spoke with the owner occupier of the neighbouring property, Green.[35] Leahy heard a car door close.[36] Leahy returned to her former position between the two sheds and saw the accused sitting in the driver’s seat of the van wearing a red baseball cap.[37] The van was facing towards the rear of the property. Leahy yelled out to the accused to stop and get out of the van.[38] The accused did not appear to acknowledge her.[39]
8.   Leahy saw the accused manoeuvre the van a couple of times to turn into the driveway.[40]
[16] T15.11.
[17] T15.25.
[18] T20.
[19] Ibid.
[20] Ibid.
[21] Ibid.
[22] T20.34.
[23] T52.13.
[24] T52.34.
[25] T22-24.
[26] T24.23.
[27] T24.23.
[28] T24.33.
[29] T25.3.
[30] T26.22.
[31] T27.24; T61.5.
[32] T57.4.
[33] T57.12.
[34] T57.30.
[35] T57.33.
[36] T58.36.
[37] T58.38.
[38] T59.17.
[39] T59.18.
[40] T59.26.
There is a divergence in the evidence as to what transpired from this point and, more specifically, as to Walker’s position on the driveway at the time of the vehicle driving into, and over the gates, and onto Churchill Road. There is also a discrepancy in the evidence of Walker on one hand, and Leahy and Green on the other hand, as to whether the van stalled or stopped after colliding with the gates.
The primary issue in dispute in this trial is whether the driving of the accused was likely to cause harm to Walker, along with whether the prosecution has proved beyond reasonable doubt that the accused knew that his driving was likely to cause Walker harm, and intended to cause such harm or was recklessly indifferent to such harm being caused. Those contested issues call into question the location of Walker at the time of the accused colliding with, and driving over the gates, before turning onto Churchill Road.
Evidence on the contested issues
Walker gave evidence that after having driven back to the front of the premises, and after receiving a radio transmission from Leahy, in which she told him that the accused was attempting to exit through the roof,[41] he walked up the driveway to a position about one metre from the gate.[42] Walker said he then received another radio transmission from Leahy in which she said the accused was getting into the van, and ‘he’s going to try and get out’.[43] Walker said he saw the van travelling around the corner from the back of the house, and at the same time he received another radio transmission in which Leahy said: ‘He’s coming towards the gate or something along those lines which made me stop in my tracks.’[44] Walker said the accused was looking directly at him, and was wearing a red cap.[45] He heard the engine revving and saw the van accelerating towards the gates.[46] Walker said he turned around and ran down the driveway.[47] He said that while he had his back turned, he heard the van collide with the gate so he jumped to his left and into the alcove where the front door is situated.[48] As he did so he heard some bricks tumbling to the ground, and the van driving over the bricks.[49] Walker said he next observed the van turning left onto Churchill Road and being driven in a manner such as to cause other cars on Churchill Road to brake and give way to the van.[50]
[41] T27.19.
[42] Exhibit P2, position marked ‘A’; T28.13.
[43] T28.31.
[44] T31.31.
[45] T31.3.
[46] T31.7.
[47] Ibid.
[48] T31.10.
[49] T34.
[50] T30.23.
Walker said that he was about three metres away from the van when he first observed it.[51] He said it was less than one second between him first seeing the van and hearing the sound of the van hitting the gate.[52] He said no more than two seconds had elapsed from when he first heard the engine revving to when he heard tumbling bricks.[53] He also said it took between 1 ½ to 2 seconds for him to move to the alcove area ‘because I was walking in one direction and I had to stop and turn my whole body. I didn’t have a running start’.[54] He said he moved from the alcove area onto the front lawn and from that position he observed the van driving over scattered bricks and turn left onto Churchill Road.[55]
[51] T30.34.
[52] T32.32.
[53] T31.10.
[54] T32.16.
[55] T35.
In cross-examination, Walker agreed that his aim in establishing the cordon point at the front of the house was to observe as much of the property as possible.[56] He disagreed with the suggestion that the front of the driveway, near the gate, was an ineffective position for a cordon point. He said that he was moving between different cordon positions.[57] Walker disagreed with the suggestion that at the time the van came around the corner, he was standing at the western end of the driveway close to Churchill Road.[58] He disagreed that the van was impeded by the gates. Walker said ‘it sounded like the engine was accelerating the whole time’.[59] He agreed that he was relying on what he had heard rather than what he had seen.[60] He disagreed with the suggestion that he was at the top of the driveway close to Churchill Road when the van approached the gate.[61] He also disagreed with the suggestion that the van stopped at the end of the driveway to give way to a few cars before exiting onto Churchill Road.[62]
[56] T39.3.
[57] T39.
[58] T40-41.
[59] T43.23.
[60] T42.
[61] T40.33-T41.
[62] T47.3.
Leahy gave evidence she was standing at the rear of the property in the north eastern corner[63] speaking with Green when she observed Walker standing in the driveway near the gates.[64] She said she heard a car door close and assumed this to be the accused getting into the van.[65] Leahy moved to the gap between the two rear sheds and observed the accused sitting in the driver’s seat.[66] She heard the car ignition start.[67] Leahy said she then saw the accused manoeuvre the van a couple of times before driving the van around the corner.[68] As this was occurring, Leahy said she radioed Walker and told him the accused was driving towards the gates.[69]
[63] Exhibit P2, position ‘C’.
[64] T58.28.
[65] T58.36.
[66] T58.38.
[67] T59.19
[68] T59.26.
[69] T59.28.

Leahy said only a matter of seconds had elapsed between her having observed Walker standing in the driveway near the gates, and Leahy moving to the gap between the rear sheds and observing the van turning the corner of the driveway towards the gates.[70]
[70] T64.
Leahy said that as the van turned the corner, she heard the car accelerating and she observed the van jolt forward and hit the gate.[71] She said from her position between the rear sheds, she was not able to see a person if that person was standing on the other side of the gate because the van blocked her view.[72] Leahy said the van appeared to stall so she ran back to the corner of the property.[73] From the corner, she saw the gates were no longer attached to the house, and she heard the ignition turn over again.[74] Leahy observed the van move forward and drive over the gates.[75] She heard another large loud bang and saw the van collide with the side of the house.[76]
[71] T59.34.
[72] She could not see the area marked ‘A’ on Exhibit P2; T63-64.
[73] T60.10.
[74] Ibid.
[75] Ibid.
[76] T60.27.
Leahy said it was a matter of seconds between the van hitting the gate and then hitting the house.[77] Leahy said she next ran towards the front of the premises whilst requesting an urgent welfare check for Walker.[78] As she approached the front of the premises, she saw the van exit the driveway and travel in an erratic manner in a southerly direction down Churchill Road.[79]
[77] T61-62.
[78] T61.
[79] T62.25.
In cross-examination, Leahy agreed that there was a distance of about 10 metres between her position at the corner of the property, and her position in the gap between the rear sheds.[80] She agreed that the van stalled after hitting the gate, and was briefly stationary.[81] Leahy said that the time period during which the accused started the van, manoeuvred the van around the corner, and then drove into the gates was very quick.[82]
[80] T69.10.
[81] T70.29.
[82] T 70.16-19
Green said he was standing close to the north-eastern corner of the property[83] when he observed a van driving at speed down the driveway. He saw the van hit the gates, stop and then the van ‘sort of backed up a little way and then drove over the gates and bricks and carried on towards Churchill Road’.[84] He said that as the van gained momentum he saw a policeman move to the garden to get out of the way of the van.[85] He said the policeman was standing in the driveway and in a rushed movement, between a run and a dive, he moved out of the way of the van.[86] He said it took a matter of seconds for that to occur.[87] He said that when the van hit the gates there was a commotion of bricks falling from the chimney.[88] He agreed that it was after the van had stopped and was moving for a second time that he saw the policeman move out of the way of the van.[89]
[83] Exhibit P2, near position ‘C’.
[84] T77.22.
[85] T78.3.
[86] T78.
[87] T79.4.
[88] T79.21.
[89] T79.28.
Green clarified that he first saw the van when it was turning the corner into the driveway,[90] and he would not have been able to see anyone if that person was standing in the driveway on the other side of the gate.[91] Green agreed that the gate, in effect, impeded the van from continuing down the driveway.[92] Green said that three to five seconds elapsed after the van was stopped by the gate and before the van moved through the gate.[93] He agreed that the van then navigated its way over the bricks, which had been pulled from the wall of the premises, before turning onto Churchill Road.[94] He agreed that at the time he observed the police officer move away from the van, the van had already travelled through the gates and over the bricks and was proceeding towards Churchill Road.[95]
[90] T79.34.
[91] T80.3.
[92] T80.31.
[93] T81.8.
[94] T81.17.
[95] T81.25.
Submissions of counsel for the accused
Counsel for the accused submits the prosecution has not proved beyond reasonable doubt the accused’s act of driving was likely to cause harm to Walker or any other person. Nor has the prosecution proved that the accused knew his act of driving was likely to cause Walker harm and intended to cause such harm, or, was recklessly indifferent to such harm being caused.
Counsel for the accused contends that the evidence does not support a finding that Walker was in close vicinity to the gate, or the van, as the accused drove the vehicle into and over the gate, and onto Churchill Road. To that end, reliance was placed on the following parts of the evidence:
(a) Walker was directed by Leahy to set up a cordon on Churchill Road, not near the gate, and was told by Leahy of her concern that the boundary with 117 Churchill Road (on the opposite side of the premises from the driveway) was an exit route.[96] In those circumstances it is said it is unlikely Walker would be taking up a cordon point on the driveway in the vicinity of the gate.
(b) Leahy last sees Walker near the gate whilst she is standing at the rear corner of the premises. Counsel submits that on Leahy’s evidence there is a considerable elapse of time before Leahy sees the van collide into and drive over the gates. During that period of time, Leahy moves back to the gap between the sheds (a distance Leahy estimates to be of about 10 metres), and from that position she sees the accused manoeuvre the van ‘back and forwards’ around the corner of the driveway, before seeing the van collide into the gates.
(c) Walker says he received two radio transmissions from Leahy warning Walker of the approaching van.[97] Leahy says she warns Walker by radio of the accused’s potential approach before seeing the accused’s van collide with the gates. She does so whilst in a position between the sheds. She says ‘I have come up on the police radio again and I have identified that the male was now in the van and driving towards the gates’.[98] Leahy in cross examination says that she can’t recall her exact words but ‘I believe I would have identified the fact that he was in the van and the van was moving and it would have been moving at some stage towards Walker.’[99] Leahy also has a memory of saying words to the effect of warning him to be careful as she was not sure of whether the accused would try and drive through the gates.[100]
(d) Leahy and Green gave evidence that after the van collided with the gates, there is a further period of time during which the engine stalled and requiring the accused to restart the ignition. Leahy says she then moved back to the north-eastern boundary[101] (again, a distance she estimates at 10 metres) and only then saw the accused drive the van over the gates, and brickwork before he turned onto Churchill Road.
(e) Green gave evidence that he first saw Walker moving out of the way of the van, when the van was driving over the fallen bricks, and Walker was near the garden and lawn.
[96] T37.17.
[97] T28.28; T31.32.
[98] T59.24.
[99] T72.19.
[100] T72.24.
[101] Exhibit P 2, point ‘C’.
Counsel for the accused submits that on the evidence of Leahy and Green, sufficient time has elapsed between Leahy advising Walker of the accused driving his van towards the gate, and the van being driven into and over the gates, such that there is ample time for Walker to retreat to a position of safety. In those circumstances the prosecution has not proved beyond reasonable doubt the accused’s driving created a real and substantial risk of harm to Walker or any other person. Counsel also submits that given that elapse of time, the prosecution has not proved the mental elements of the offence.
In written submissions, counsel for the accused referred to the authority of R v Abdul-Rasool.[102] Counsel relies on that authority to support the proposition that the relevant act (here, the accused’s driving) did not give rise to a substantial risk of harm.
[102] (2008) 18 VR 586.
In the case of R v Abdul-Rasool, the appellant was charged with an offence against s 22 of the Crimes Act 1958 (Vic). The appellant had attended upset at her daughter’s school. She met with a teacher in an office with an interpreter. During the meeting, the appellant pulled out a can of petrol and poured the petrol over herself. Some of the petrol made its way onto the other persons in the room. The appellant placed a cigarette lighter by her side, and said she was going to burn down the school and the others in the room. She was ultimately apprehended without incident. At trial, the prosecution adduced expert evidence that there were two other possible sources of ignition of the petrol. On appeal it was conceded that there was no realistic opportunity for either source to ignite the petrol. The appellant argued at trial, and on appeal, that she did not create an appreciable risk of death to anyone, and that account cannot be taken of the possibility of the appellant carrying out a further voluntary act of setting fire to herself in proof of the offence. The Court of Criminal Appeal accepted these submissions and set aside the conviction.
Counsel for the accused specifically referred to the Court’s discussion of the objective elements of the offence at [41]:
I do not think the expression “may place” as a matter of principle or authority attenuates the requirement for a substantiated and real danger of death existing in the given circumstances. The endangerment to life contemplated by s 22 is real and as Ashley JA observed in R v Lam not merely a hypothetical construct. The point is also made clear in R v Anderson which supports the view that there must in fact exist a danger of death in the impugned conduct in the surrounding circumstances. The danger of death must not be contingent upon some unsubstantiated conduct that has yet to exist. The decision in Coggins v R illustrates that “potential” endangerment is not established by supplementing the impugned conduct with future events, so as to invest the impugned conduct with the requisite quality of endangerment.
The case of R v Abdul-Rasool was discussed by Doyle CJ in Nelson v Police. [103]
[103] [2011] SASC 55.
The case of Nelson involved an appeal against a decision of a Magistrate finding Mr Nelson guilty of an offence against s 29(3) of the Criminal Law Consolidation Act 1935 (SA). The charge was based on an incident in which Mr Nelson drove a motor vehicle and performed manoeuvres including a ‘burnout’ and a ‘doughnut’. The appeal was brought on the ground that the evidence before the Magistrate did not support the Magistrate’s finding that the offence was proved.
The events which gave rise to the charge occurred at 4.30 am in the morning and were filmed by an undercover police officer. The incident lasted 17 seconds. The street was lit by standard street lighting, and was 230 metres long and about 10 metres wide. There was a grassed footpath on either side. There were no residential premises. At the end of the street there was a circular turning area, referred to at the trial as ‘the bowl’. Cars were parked along the street parallel to the kerb. A number of people got out of the cars to watch what was about to occur, and there were about 60 spectators moving around, and on the street. Mr Nelson’s vehicle travelled into ‘the bowl’ area, did a lap in a counter clockwise direction, did a doughnut and then drove north on the street where it continued to do a burn out. Mr Nelson then executed another doughnut in close proximity of people standing there, and then did a ‘stand still’ doughnut, before parking the vehicle. Pedestrians were within 5 metres of the vehicle when he performed the last of the doughnuts. Mr Nelson did not give evidence at his trial.
The Magistrate found that the defendant, in driving his vehicle in this manner, knowingly placed spectators at a real and substantial risk of harm in the event that the defendant either lost control of the vehicle or one or more of the spectators got too close. The Magistrate also found that the defendant was recklessly indifferent as to whether his passenger or spectators were harmed.
Counsel for the appellant argued that an act cannot be likely to cause harm if that conclusion depends upon another person doing something that did not happen (a spectator getting too close) or if it depends upon something being done by Mr Nelson which did not in fact happen (Mr Nelson miscalculating or losing control). Counsel submitted that the possibility of Mr Nelson miscalculating or losing control was so slight or remote that there was not a real or substantial risk of harm. Counsel further argued that one cannot rely at all upon conduct that might have happened but did not happen, to establish the existence of a real or substantial risk of harm.
Doyle CJ in discussing the case of Abdul-Rasool at [21] said:
... it is important to bear in mind that in this case the prosecution sought to characterise as endangering life conduct on the part of Ms Abdul Rasool that included a further conscious or voluntary act that she did not perform, and sought to include it on the basis that she might have performed it. One can understand in that context the insistence by the Court that the focus had to be on what she did, and not what she might have gone on to do but did not go on to do.
The findings of the Magistrate that Mr Nelson’s driving was an act likely to cause harm to another was upheld. Doyle CJ said at [26]:
The real and substantial risk of harm was present. It was present because of the real possibility that a spectator would get too close or possibly that Mr Nelson would miscalculate or lose control. The risk of harm was present and inherent in the circumstances in which Mr Nelson drove the vehicle, and did not arise only if and when there was a miscalculation, or loss of control, or one of the spectators got too close… The substantial risk of harm arose from the nature of the manoeuvre performed, the inherent risk of the sudden movement of the car, the proximity of the spectators and the absence of any protective barrier.
Doyle CJ also upheld the Magistrate’s findings that the mental elements of the offence had been proved and dismissed the appeal.
The decision of Nelson makes clear that in determining whether there is a real or substantial risk of harm arising from, and inherent in, the manner and circumstances of a person performing an act, such as driving a vehicle, the court can have regard to conduct that might have occurred, but did not occur, as a result of the person performing that act.
Factual findings
I make the following factual findings.
(a) I am satisfied that Walker was standing on the driveway and in close vicinity of the gates as the accused drove the van around the corner of the premises. I am also satisfied that Walker was still in close vicinity of the gate as the accused accelerated the van towards the gates. I rely on Walkers evidence that he was standing near the gates as his eyes met those of the accused, moments before the vehicle accelerated into the gates.
Contrary to the submissions of defence counsel, I consider Walker’s evidence on this topic is not materially undermined by the evidence of Leahy. Leahy says that only a matter of seconds had elapsed between her seeing Walker near the gate (when she was positioned on the north-eastern boundary[104]) and to the time of her seeing the van accelerate towards the gates (from a position between the two sheds).[105]
Further, although Leahy warned Walker that the accused may be heading towards his cordon point, it does not follow that Walker would have necessarily moved from his position in the vicinity of the gates during that very short period of time. Nor does the fact that the cordon point was set up by Walker in what does appear to be a somewhat ineffective position, cause me to doubt Walker’s evidence that he was still close to the gates as the accused accelerated along the driveway towards the gate.
The driveway, as shown in the photographs,[106] is not of any great length, and on both Walker and Leahy’s evidence, the accused’s act of driving into, and over, the gates occurs over a matter of seconds. I am satisfied that the accused was accelerating the vehicle and travelling at speed from the property, consistent with the accused being aware that the house was being used as a cannabis ‘grow house’ (as later discovered by police[107]), and thus trying to avoid being located at the premises so as to be connected with that criminal activity.
(b) I am also satisfied that the van was initially impeded by the gate causing it to stall and stop. I prefer the evidence of Leahy and Green to Walker on this aspect of the evidence because they were watching the vehicle whereas Walker had by this stage turned his back to the van. On both the evidence of Leahy and Green, the van stopped only momentarily before the accused restarted the ignition and proceeded to drive over the gates and brickwork. Green said Walker had to ‘run and dive’ to avoid the van colliding with him.
Although neither Leahy nor Green could see Walker as the van collided with the gate, had Walker been in the position he described, neither Leahy nor Green would be able to do so as their line of vision was blocked by the van itself.
Green says that at the time Walker jumped out of the way of the vehicle, the van had already collided with the gates, stalled and proceeded through the gates. He also said Walker was near the garden when he jumped out of the way of the vehicle. By contrast Walker says he jumped into the front alcove (not the garden) at the time when the van was colliding with the gates. The difference between the evidence of Green and Walker doesn’t cause me to doubt Walker’s evidence. The two locations (the garden and the alcove) are but a short distance from each other, and both locations are in close vicinity to the gates. Further, on the evidence of Green and Leahy the van only momentarily stalls or stops before driving over the gates and brickwork and onto Churchill Road.
I am satisfied that whilst the van stalled and was initially impeded by the gate, the van only stopped momentarily before the accused re-started the ignition and proceeded to drive over the gates and brickwork.
(c) I am satisfied on the evidence of Walker that as the accused drove the van into, and over, the gate, he only narrowly missed colliding with Walker.
[104] Exhibit P2 at position ‘C’.
[105] T64.14.
[106] Exhibit P1, noting there was no evidence of the measured length or width of the driveway.
[107] T47.23.
Offence of aggravated creating likelihood of harm
I am satisfied beyond reasonable doubt the accused consciously and deliberately drove the van from the rear of the premises into, and over, the gates and onto Churchill Road. There is no dispute on the evidence that the accused was driving the vehicle at all relevant times.
I am satisfied beyond reasonable doubt that the accused, in driving the vehicle into, and over, the gates created a real or substantial risk of harm to Walker. The accused accelerated the van at speed into the gates at a time when Walker was on the driveway and close to the gates. He drove at sufficient speed to do considerable damage to the gates. The driveway is depicted in the photographs and is a relatively narrow driveway. The width of the van would have filled a large part of the driveway.[108] There was little room for Walker to take evasive action. Had Walker not moved as quickly, or as deftly, as he did, or had he tripped, or in some manner lost his balance, he would not have been able to avoid the van colliding with him. The gate was not a particularly solid structure, such as compared with a cement wall for example, and was of limited utility as a protective barrier in the context of a van accelerating along a narrow driveway, with the driver intending to flee police apprehension.
[108] T79.11 as described by witness Green.
I am also satisfied beyond reasonable doubt that at the time of driving the van into, and over, the gates the accused knew Walker was on the driveway and in the vicinity of the gates, and as such knew the act was likely to cause harm to another. In proof of this element of the offence, I rely on Walker’s evidence that he made eye contact with the accused moments before the accused accelerated down the driveway and into the gates.

I am satisfied beyond reasonable doubt that the accused, at the time of driving the van into, and over, the gates, was recklessly indifferent as to whether such harm was caused. That is, the accused engaged in conduct giving rise to a real or substantial risk of harm, and was aware of that real or substantial risk of harm, yet decided to engage in the driving conduct nevertheless. I am satisfied on the evidence that the accused, having made eye contact with Walker, knew of his presence in close vicinity to the gate, and then engaged in the driving, determined to leave the premises without being apprehended by police, despite knowing of the real or substantial risk his driving posed to Walker.
There was no evidence presented of any lawful excuse in this case for the relevant driving so it is presumed by law that no such lawful excuse existed.
Finally, I am satisfied beyond reasonable doubt that the accused committed the offence against a police officer (Walker), knowing he was acting in the course of his official duty. There was no dispute Walker was in police uniform and drove to the premises in a marked police vehicle, and no dispute on the evidence that the aggravating feature has been proved.
Verdict
I find the accused guilty of the offence of aggravated creating likelihood of harm. There is no need to consider the alternative offence of hindering police.