R v Farrer - [2017] SASCFC 3

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FARRER
[2017] SASCFC 3
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Nicholson)
10 February 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - GENERALLY
Appeal against conviction.
The appellant was convicted after a trial by Judge alone of aggravated causing death by dangerous driving and leaving the scene of an accident after causing death. On 27 December 2013 the appellant was driving along Inman Valley Road between Yankalilla and Victor Harbor and struck the back wheel of a bicycle, causing the death of the rider. The offending was aggravated by the presence of methylamphetamine in the appellant’s blood. The trial Judge found that the appellant’s manner of driving was dangerous either by virtue of the appellant’s consumption of methylamphetamine before the collision and whether she was awake or asleep at the time of the collision.
Whether the Judge erred in finding that the appellant had no sleep during the night before the collision. Whether the Judge erred in finding that the appellant did not consume all of the methylamphetamine after the collision. Whether the Judge failed to provide adequate reasons regarding whether the appellant had slept and when she consumed the methylamphetamine. Whether the verdict on the charge of aggravated causing death by dangerous driving is unreasonable and cannot be supported having regard to the evidence.
Appeal dismissed.
Held per Kelly J (Vanstone and Nicholson JJ agreeing) dismissing the appeal:
1.       It was open to the Judge to find that the appellant had no sleep during the night before or on the morning of the collision, and that most if not all of the methylamphetamine had been consumed by the appellant before the collision.
2.       The Judge’s reasoning on these issues was detailed and clear.
3.       Having regard to the whole of the evidence, it was open to the Judge to conclude that the prosecution had proved beyond reasonable doubt that the appellant drove the motor vehicle in circumstances which amounted to dangerous driving causing the death of the deceased, irrespective of whether the appellant was awake or asleep at the time of the collision.
Criminal Law Consolidation Act 1935 (SA) s 19A(1), s 19AB(1), referred to.

R v FARRER
[2017] SASCFC 3
Court of Criminal Appeal: Vanstone, Kelly and Nicholson JJ

VANSTONE J: I would grant permission to appeal but dismiss the appeal for the reasons written by Kelly J.
KELLY J: On 17 May 2016 after a trial by Judge alone in the District Court the appellant, Samantha Magdaleine Farrer, was convicted of one count of aggravated causing death by dangerous driving contrary to s 19A(1) of the Criminal Law…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Farrer

Details

AGLC: R v Farrer [2017] SASCFC 3
Case: [2017] SASCFC 3
Decision Date: 10 February 2017

CaseChat Overview and Summary

The appeal in *R v Farrer* concerned a conviction for dangerous driving causing death. The appellant was driving a Holden sedan along Inman Valley Road when her vehicle struck the rear tyre of a bicycle ridden by Ms Kathleen Marie Heraghty. Ms Heraghty died at the scene. The appellant continued driving and was later stopped by police. A blood sample taken from the appellant revealed the presence of methylamphetamine and other drugs. At trial, the prosecution alleged the appellant's driving was dangerous due to a failure to keep a proper lookout, and that this was aggravated by the presence of methylamphetamine in her blood.

The legal issues before the appellate court were whether the trial judge erred in finding the appellant guilty of dangerous driving causing death, and whether the verdict was unreasonable or insupportable having regard to the evidence. The appeal also raised questions concerning interference with the discretion or findings of the trial judge.

The appellate court, comprising Vanstone, Kelly, and Nicholson JJ, reviewed the evidence presented at trial. The court considered that it was open to the trial judge to conclude, beyond reasonable doubt, that the appellant's driving constituted dangerous driving causing death, irrespective of whether she was awake or asleep at the time of the collision. The court found that the appellant had failed to demonstrate any error of fact or law in the trial judge's reasoning.

Consequently, the appeal was dismissed. While permission to appeal was granted on all three grounds, the court ultimately upheld the trial judge's verdict.

Orders

Orders of the court

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Background

Background to the litigation

Before turning to deal with the appeal grounds it is helpful to set out the background of the offending. Background On 27 December 2013 at approximately 10.40 am the appellant was driving a Holden sedan along Inman Valley Road between Yankalilla and Victor Harbor. At the same time Ms Kathleen Marie Heraghty was riding an Orbea bicycle in the same direction as the appellant on that road. On a straight, level section of the road the appellant’s vehicle struck the back tyre of Ms Heraghty’s bicycle. She died at the scene of the collision. After the collision the appellant kept driving. The vehicle was stopped by police at about 11.30 am on the Southern Expressway not far from Adelaide. When questioned by a police officer about the obvious damage to the front left of the Holden vehicle the appellant told him that she had hit a post. A blood sample was taken from the appellant at 12.57 pm that afternoon. The sample revealed the presence of 0.43 milligrams of methylamphetamine per litre and small quantities of other drugs including amphetamine, pseudoephedrine and ephedrine. Amphetamine, pseudoephedrine and ephedrine are all ingredients in prescribed medications or ingredients used in the manufacture of methylamphetamine. The trial At trial the prosecution alleged that the appellant’s manner of driving was dangerous in that she failed to keep a proper lookout and did not see Ms Heraghty on the road. Ms Heraghty would have been visible to anybody approaching as it was a straight road, a clear sunny day and there were no other vehicles on the road at the time. The aggravating circumstance alleged was that the appellant drove the vehicle while methylamphetamine was present in her blood. There was little dispute about the circumstances surrounding the collision. The deceased was cycling towards Victor Harbor. There was a flashing red light under the back of her bicycle seat. The left side of the front bumper bar of the Holden being driven by the appellant struck the rear wheel of the deceased’s bike causing her to be thrown back over the left side of the car’s bonnet, hitting and shattering the left side of the windscreen, with her helmet hitting the roof of the car. The major crash investigator who examined the roadway after the collision saw no evidence of braking. There was no dispute about the investigator’s estimate that the appellant’s vehicle was travelling in the vicinity of 50 to 60 kilometres per hour at the time of impact. Robert Peters, a lone cyclist following behind Ms Heraghty, was pedalling hard trying to catch up with her. His head was down most of the time. He said that when he looked up at one stage he saw a vehicle about 200 to 250 metres ahead of him, travelling at about 20 to 30 kilometres per hour in the same direction. He had not noticed that vehicle before. The vehicle then accelerated and drove away. He could no longer see the cyclist who he had been following. Mr Peters was the first person upon the scene and he found Ms Heraghty lying on the grass verge.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having reviewed the whole of the evidence I consider it was open to the Judge to conclude, irrespective of whether the appellant was awake or asleep at the time of the collision, that the prosecution had proved beyond reasonable doubt that the appellant drove the motor vehicle in circumstances which amounted to dangerous driving, and thereby caused the death of Ms Heraghty. Conclusion In my view the appellant has failed to demonstrate that the Judge made any error of fact or law in reasoning to guilt. Having reviewed the whole of the evidence I have no misgivings about the verdicts. For these reasons I would grant permission to the appellant on all three grounds, however I would dismiss the appeal. NICHOLSON J: I would dismiss the appeal for the reasons given by Kelly J.

Ratio Decidendi

Legal Principle Established

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