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 Consolidation Act 1935 (SA) (the Act) and one count of leaving the scene of an accident after causing death contrary to s 19AB(1) of the Act.
The appellant appeals those convictions on three grounds: first, that the Judge provided inadequate reasons for certain findings; second, that certain critical findings were not reasonably open on the evidence; and third, that the verdict of guilty in respect of the charge of aggravated causing death by dangerous driving is unreasonable and cannot be supported having regard to the whole of the evidence.
A single Judge referred the question of whether permission to appeal should be granted to this Court.
The nature of the charges means that both convictions appealed against rise and fall together.
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.
The prosecution called a friend of the appellant, David Repanich, who was the owner of the Holden vehicle driven by the appellant and a passenger in the vehicle at the time of the collision. Although Mr Repanich’s evidence was not wholly accepted by the Judge, there were some aspects which were not in contention which he did accept. The uncontentious evidence included that the collision occurred when the appellant was travelling to Victor Harbor from Cape Jervis on the way to visit her father. Mr Repanich and the appellant had driven together from his home at Collinswood during the night before the collision. They had first driven to Cape Jervis where they remained for some hours while Mr Repanich went fishing. They then drove from Cape Jervis towards Victor Harbor. The collision occurred when they were travelling in a south easterly direction along Inman Valley Road. There was no dispute that the location of the collision was about 60 kilometres, or 50 minutes away from Cape Jervis.
The appellant did not give evidence. The defence case at trial was that on the whole of the circumstantial evidence the Judge could not exclude rational explanations consistent with the appellant’s innocence. The appellant submitted that the evidence did not exclude as a reasonable possibility that the appellant had simply momentarily fallen asleep in circumstances not proven to amount to driving in a manner which was dangerous to the public. The appellant also argued that the Judge could not exclude the reasonable possibility that all of the methylamphetamine found in the appellant’s blood was consumed after the collision at 10.40 am and before 11.30 am when she was stopped by police on the Southern Expressway.
The argument on appeal
The appellant’s principal contention on appeal related to two critical factual findings made by the Judge. The first, relates to the issue whether the appellant had any sleep during the night or early morning of 27 December 2013 prior to the collision. The second, relates to the issue whether the appellant had ingested all of the methylamphetamine before or after the collision.
The factual findings made by the Judge on the issue of whether the appellant had slept are to be found in the following paragraphs:
[52]I find that the accused joined Repanich and others at Repanich’s house in Collinswood sometime on 26 December, probably in the afternoon or evening. She may have been absent from the house for a period, perhaps with the friend Paul, and perhaps at McDonalds. In the early hours of the morning the accused drove Repanich’s vehicle to Cape Jervis with the object of visiting her father in or near Victor Harbor in the late morning. They spent time at Cape Jervis. The accused drove the vehicle after Cape Jervis. …
…
[128]I find that the accused had driven overnight from Adelaide to Cape Jervis and had remained awake for a period while there. She drove straight to the accident scene. She then drove on to where the police stopped her.
…
[134]… I have found that she was awake all night. She was awake during celebrations at Collinswood before leaving for the south coast in the hours of darkness. She remained awake at Cape Jervis. She drove to Inman Valley Road. …
…
[146]I am satisfied that the accused was awake from the evening of 26 December until after 2 pm on 27 December when the police video was turned off. …
The finding as to when the appellant consumed the amphetamine is found in [100] to [110]:
[100]I am satisfied that the accused did not ingest all of the amphetamine after the collision. I am not able to exclude the possibility that she ingested some of it after the collision.
…
[110]It would in my view be extremely unlikely in these circumstances that she would stop the car and take all of the methylamphetamine that caused the quite high reading recorded in the blood taken at 12.57 pm. There were no drugs or drug paraphernalia found in the car when it was searched after she was stopped. That does not of course exclude the possibility of her having ingested the drug and thrown away any evidence of its consumption. Nevertheless, knowing full well that she had collided with someone and having quite quickly decided to return to Adelaide, I think it would be extraordinary for her to have taken all of the methylamphetamine.
The appellant submitted that the totality of the circumstantial evidence did not permit the Judge to make either of those findings beyond reasonable doubt and accordingly there was insufficient evidence to support a verdict of guilty on the charge of causing death by dangerous driving. The appellant submitted the Judge therefore erred in convicting the appellant in respect of the first count of aggravated cause death by dangerous driving and by extension the second count of leaving the scene of an accident after causing death. The appellant further submitted that the Judge gave inadequate reasons for both of these conclusions.
The Judge’s reasons
The Judge’s reasons commence with a summary of some important but relatively uncontroversial findings about the circumstances in which the collision occurred.
The Judge then dealt with the evidence of Mr Repanich in some detail. It is evident from that analysis that the Judge held some reservations about Mr Repanich’s evidence, concluding that he was an unreliable witness in a number of material respects. Nevertheless, the Judge was prepared to rely on some aspects of Mr Repanich’s evidence which were important to the conclusion he reached on the two critical issues, namely whether the appellant had slept and whether she had consumed any or all of the methylamphetamine after the collision. At [51] and [52] the Judge made the following findings:
[51]I indicate which parts of Repanich’s [evidence] I do accept. I leave aside for present purposes the important questions of whether the accused ingested methylamphetamine before or after the collision, or both, and whether she had any sleep before the collision. Findings on those topics depend on other evidence.
[52]I find that the accused joined Repanich and others at Repanich’s house in Collinswood sometime on 26 December, probably in the afternoon or evening. She may have been absent from the house for a period, perhaps with the friend Paul, and perhaps at McDonalds. In the early hours of the morning the accused drove Repanich’s vehicle to Cape Jervis with the object of visiting her father in or near Victor Harbor in the late morning. They spent time at Cape Jervis. The accused drove the vehicle after Cape Jervis. After the collision the accused decided not to go on and visit her father but to return to Collinswood. She texted her father telling him about her changed plans. She texted him at about 11.24 am, just minutes before being stopped by police.
The Judge then identified other aspects of the evidence important to his conclusion that immediately after the collision the appellant was aware that she had collided with a person and not with a post as she told the police. That evidence included a number of things the appellant said to the police initially when she was stopped on the Southern Expressway at about 11.30 am and later when she was at the Christies Beach Police Station. It also included a text message sent from her mobile phone to her father at about 11.24 am that morning.
The appellant acknowledged to Constable Knight, who stopped her on the Southern Expressway, that she was the driver of the vehicle at the time of the collision. When asked how the windscreen on her vehicle was smashed by Constable Knight, the appellant responded by saying “I hit a post”.
Later, when questioned further at the Christies Beach Police Station by Brevet Sergeant Bakker she said she had hit a pole:[1]
[1]    Record of Interview MFI P7A, 9.
Q     Alright so you don’t know you’ve hit somebody
ANo I didn’t know, the guy said, the guy at the, the copper that pulled me over he said that I did and I was like no I didn’t, I hit a sto..., I hit, I hit, I hit the pole like and then I fell asleep
QOkay
AI fell asleep because my friend was asleep and, and I was trying to stay awake, we went fishing
Later:[2]
[2]    MFI P7A, 9-13.
AOh my God, oh I don’t know what on earth to do (crying) I would have stopped. Oh shit....
…
QThat’s okay, we’re, we’re, I suppose we, we must apologise, we, we thought you were aware of it
A(Crying) I mean ………………….. I didn’t know, there was so many cyclists around that road
…
AI was feeling bad because I thought I’d broken his window well I knew I broke his window because I broke……. Oh my God (crying) I’m so sorry oh shit sorry, keep going
…
AYeah of course, now I’m one of those fucking nasty hit and run people but I didn’t mean to
…
AOh God, oh god, I fell asleep, just I was watching the road …………… oh my God (crying) my God, I didn’t see her, I didn’t see her, I hit, I hit a pole, fuck, I’m sure I’ve said too much already I know I’m sorry
After making the finding that the appellant was aware she had collided with a person not a post, the Judge went on the analyse the evidence on the topic of whether the appellant had simply fallen asleep at the wheel. In the end the Judge did not conclude whether she had fallen asleep one way or another. The critical aspect of the Judge’s reasons on this topic is his finding that, whether or not the appellant fell asleep or whether she was distracted because she had consumed methylamphetamine before the collision, the prosecution had proved beyond reasonable doubt that the driving was dangerous.
His reasoning was as follows:
[146]I am satisfied that the accused was awake from the evening of 26 December until after 2 pm on 27 December when the police video was turned off. One possible explanation for her failure to see the cyclist is that she momentarily fell asleep. For reasons I have already given I do not think she did fall asleep. She had passed Mr Peters without incident and was still alert between 11.30 am and 2 pm while on the police video. But if she did fall asleep then I am satisfied beyond reasonable doubt that it was objectively dangerous for her to be driving. If she had had no amphetamine then she must have been extremely tired and increasingly aware of that fatigue. She planned to visit her father and then drive back to Adelaide. She cannot have contemplated that journey if she had not taken amphetamine to keep her awake. However, if she had taken no drug then it was dangerous for her to drive in such a fatigued state.
[147]If she had fallen asleep at the wheel, having taken amphetamine, then it was objectively dangerous for her to drive. If she had not taken the drug before, or had little experience of its effects, then it was objectively dangerous for her to take the drug not realising it might eventually cause her to fall asleep. It was quite a long journey that she proposed. She planned to drive from Collinswood to Cape Jervis, spend some time fishing there, then drive to Victor Harbor to visit her father.
The appellant submitted that the failure to make a finding beyond reasonable doubt that the appellant was awake at the time of the collision was fatal to the conclusion that the appellant’s driving was dangerous in all of the circumstances.
Two aspects of the Judge’s reasoning on this topic were said to be deficient. First, the appellant submitted there was simply insufficient evidence to support the finding beyond reasonable doubt that the appellant was awake all night until the police switched off the video the next day. The appellant submitted that there was simply an absence of evidence about the appellant’s movements during that period of time and accordingly the prosecution had not excluded a reasonable possibility that the appellant slept at various times during the night and early morning.
The Judge’s reasoning that the appellant’s driving was dangerous whether or not she had fallen asleep at the wheel, and whether or not she had taken the methylamphetamine before or after the collision, was also criticised.
The appellant submitted that a finding beyond reasonable doubt on the topic of whether the appellant was awake at the time of the collision or had fallen asleep at the wheel, was an indispensable link in the chain of reasoning to guilt. Without a finding that the appellant was awake the prosecution could not exclude a reasonable possibility that the appellant had simply fallen asleep at the wheel in the seconds before the collision in circumstances not proven to amount to dangerous driving.
Analysis
In my view the appellant’s submissions fly in the face of the Judge’s detailed and logical reasoning set out in the paragraphs above. Moreover, having reviewed the evidence as a whole, I consider it was open to the Judge to make the findings of fact that, first, the appellant had no sleep during the night before or in the early hours of the morning of the collision, and second, most if not all of the methylamphetamine had been consumed by the appellant before the collision.

The Judge’s reasons demonstrate that he well understood that the defence case was that the whole of the evidence did not permit findings beyond reasonable doubt on those two critical factual issues, and there remained a possibility that the appellant had fallen asleep in circumstances not amounting to dangerous driving.
It is those two issues that he addressed immediately after discussing the relatively uncontroversial circumstances of the collision itself and the difficulties with the evidence of Mr Repanich.
As the Judge observed, there was a body of evidence to support the finding he made that the appellant was aware immediately after the collision that she had hit a person and not a post or a pole. That evidence included not only what she told the two police officers, Constable Knight and Brevet Sergeant Bakker, but also Mr Repanich’s evidence, as far as it went, about what the appellant said to him immediately after the collision. The objective evidence about the appearance of the windscreen which had pieces of blood and flesh visible upon it, was also important to the conclusion the Judge reached on that topic; as was the finding that the appellant had sent her father a text message cancelling the trip to Victor Harbor.
Some of the uncontested evidence about the circumstances of the collision was also relevant to the conclusion that the appellant had not consumed all of the methylamphetamine after the collision. I am now referring to the evidence of distances and times taken to travel, which renders improbable, as the Judge observed, the opportunity for the appellant to ingest the whole of the drug after the collision and before she was stopped on the Southern Expressway.
Whilst the pharmacological expert evidence based on the analysis of the appellant’s blood taken at 12.57 pm on the day of the collision was neutral on the question of when the methylamphetamine had been ingested, there was no evidence which pointed to any real possibility that she had ingested all of the methylamphetamine after the collision. To the contrary, portions of Mr Repanich’s evidence (which were never challenged on this particular topic) about the appellant’s behaviour during the night before and in the early hours of the morning of the collision pointed to the appellant having consumed most of the drug well before the collision. His evidence was that the appellant was agitated and mobile for the whole of the time that they were at Cape Jervis and that she was the driver both from Collinswood down to Cape Jervis and from Cape Jervis to Inman Valley Road where the collision occurred. As the Judge pointed out, the appellant’s consumption of methylamphetamine prior to the collision provides some explanation why she did not stop immediately, having realised that she had hit a person, not a pole. There was no evidence pointing to any ingestion of the drug after the collision. There was no drug residue or paraphernalia in the vehicle.
In these circumstances I consider the Judge’s conclusion that “knowing full well that she had collided with someone and having quite quickly decided to return to Adelaide, I think it would be extraordinary for her to have taken all of the methylamphetamine” was open to him. For these reasons, although it can be accepted that the finding that not all of the methylamphetamine was consumed after the collision was critical to the Judge’s ultimate conclusion about the guilt of the appellant, I cannot accept the appellant’s contention that the evidence did not support that finding.
The appellant’s further contention that a finding that the appellant was awake at the time of the collision was critical to a conclusion of guilt cannot be accepted. The Judge’s reasoning on this topic is both logical and transparent.
It was never challenged that both the appellant and Mr Repanich had been together for most of the previous evening, that the appellant drove to Cape Jervis in darkness and arrived there at about the time when the sun came up. She was awake during the time they spent at Cape Jervis. In these circumstances the Judge’s conclusion that the appellant knew or ought to have known that she was tired and likely to fall asleep was supported by the uncontroversial and uncontested evidence at trial.
Even if the finding that she had no sleep at all may have been in error it is plain on the whole of the evidence that the appellant had little if any sleep during the night before the collision. That finding is also supported by the appellant’s own admission to Brevet Sergeant Bakker at the police station. She told him that she was trying not to fall asleep, in particular she said:[3]
AI fell asleep because my friend was asleep and, and I was trying to stay awake, we went fishing
…
AOh God, oh god, I fell asleep, just I was watching the road …………… oh my God (crying) my God, I didn’t see her, I didn’t see her, I hit, I hit a pole, fuck, I’m sure I’ve said too much already I know I’m sorry
[3] MFI P7A, 9; 13.
In short, I consider that the evidence supported the Judge’s finding that the appellant was tired by lack of sleep and/or distracted by the ingestion of methylamphetamine which the appellant had taken prior to the collision. Either of those factual findings standing alone was sufficient to support the verdict of guilty in relation to the first count and by extension, the second.
For these reasons I reject the appellant’s submission that before returning a verdict of guilty it was necessary for the Judge to make a finding beyond reasonable doubt that the appellant was awake at the time of the collision.
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.