R v Head No. Sccrm-97-217 Judgment No. S6506

[1997] SASC 6506

R V HEAD

Court Of Criminal Appeal:  Doyle CJ, Lander and Bleby JJ

LANDER J

The appellant was charged and convicted upon the verdict of a jury of causing bodily harm by dangerous driving in that on the 31 January 1996 at Old Noarlunga he drove a motor vehicle in a manner which was dangerous to the public and thereby caused grievous bodily harm to Neil Cedric Thiele.

Upon his conviction he was sentenced to be imprisoned for fifteen months and a non parole period of six months was set.  The sentence was suspended upon the appellant entering into a good behaviour bond for a period of twelve months.

This appeal relates only to his conviction.

Two grounds of appeal were advanced:

“1.The verdict was unsafe and unsatisfactory in all the circumstances.

2.The learned Trial Judge failed adequately to direct the jury as to what evidence was capable of supporting a verdict of causing grievous bodily harm by driving in a manner dangerous to the public as opposed to driving without due care and attention.”

On 31 January 1996 the appellant was driving a blue Mitsubishi utility south along the Adelaide to Victor Harbor Road approaching McLaren Vale.  Mr Thiele, the person referred to in the information was driving alone in a northerly direction in a yellow Holden Commodore along the same road.

The vehicle being driven by the appellant and the vehicle driven by Mr Thiele came into collision on Mr Thiele’s correct side of the road, i.e. the western side of the Adelaide to Victor Harbor Road.  The speed limit on this stretch of road is 100 kilometres per hour.

At the point where the collision occurred there was only one lane for vehicles travelling in the direction of travel of Mr Thiele but two lanes for vehicles travelling in the direction of travel of the appellant.  There is no doubt, as I have already said, that the collision occurred when the appellant’s vehicle crossed over onto the incorrect side of the road and collided head on with the vehicle being driven by Mr Thiele.

Both Mr Thiele’s motor vehicle and the appellant’s motor vehicle were badly damaged.  In fact Mr Thiele’s motor vehicle was written off.

Mr Thiele suffered serious injuries including fractures to two bones of his arm, the right ankle and serious damage to the knee cap of the left leg and a bruised sternum.  As a result of the injuries suffered he had no recollection of the happening of the collision at all.  The last thing he could remember before the accident was driving his motor vehicle onto the roadway from Willunga.  The appellant gave a statement to the Police and also gave evidence. 

The record of interview was read at the trial. 

In that record of interview he was asked how the accident occurred and he said it occurred when he was changing lanes from the left hand lane to the right hand lane and he was hit from behind by another vehicle.  He said he lost control of his vehicle and the last thing he could remember is turning to the right and hitting the side of the car with which his motor vehicle collided.  He said in that record of interview that he did not remember the impact.

Constable Carroll said he was asked and answered the following questions:  (TX 172)

“QCan you tell me how the accident occurred?

A      Well I, I went, I changed lanes from the left-hand lane to the right-hand lane and er then I was hit from behind by another vehicle, another vehicle.  I lost control of my vehicle and the last thing I remember is turning it to the right and just hitting the other side of the car in front of me, but I don’t remember the impact.

QSo another vehicle pushed you from behind is that correct?

AI believe so.

QIn the left hand lane?

AIn the right hand lane.  I changed from left to the right hand lane.

QDo you know what sort of vehicle that was?

AI looked in my rear vision mirror prior to changing lanes and I saw a vehicle, an F100 type or four wheel drive type vehicle in the right hand lane.

QAnd you definitely felt some impact?

AI just felt my vehicle being pushed.  I didn’t feel any bump or bang.”

He was later asked these questions and gave these answers:

“QThe car that was in the right hand lane that you overtook, did you see it move into the right lane?

AI did not overtake a vehicle in the right hand lane.

QWere there any other vehicles behind, behind you at all at that stage.

ARight and left, yes, I believe there were vehicles behind in both lanes.

QSo you did not take overtake any vehicles while you were in the right hand lane?

AI think I changed lanes to overtake another vehicle.  Whether I did pass that vehicle while being pushed up the hill, I don’t know.  I was too busy trying to maintain control of my vehicle.

QDid you see any other vehicles in the left hand lane ahead of you?

AYes.

QCould it have been a slower vehicle?

AI would say yes that’s why I changed lanes.

QThat’s why you changed lanes to the right hand lane to overtake that slower vehicle?

AThat’s right.

QDo you know how far away that vehicle was from you when you changed into the right hand lane?

ANo, I don’t recall.”

He later said in his record of interview that he was travelling at less than 80 kilometres per hour when he changed from the left to the right hand lane.

The appellant also suffered serious injuries.  At his trial he said that he had several broken bones in both legs and both hands, including a compound fracture of the right tibia and fibula.  He also suffered several broken ribs, substantial bruising to his chest and feet, lacerations of both legs and injuries caused by glass.  He is left with considerable skeletal disabilities.

In evidence in chief he said that his recollection of the events was very vague.  He did say, however, that he had a memory of events to the point of impact.

He was asked:  [TX 197]

“QCan you give the court, to the best of your ability, your best impression of what happened.

AI know I took the left-hand lane because that was my habit.  I caught up with a slower moving vehicle.  When I say ‘caught up’, I mean approached, I thought I should change into the right-hand lane to overtake that vehicle, I indicated intention to change lanes and checked by rear-vision mirrors and saw there was a largish vehicle behind me in the right-hand lane.  The make of the vehicle didn’t register on me, but I thought ‘I’ll let that vehicle pass me before I change lanes’, and then I found my vehicle was trying to turn to the right, and I tried to correct that tendency, and I don’t think it was skidding at that stage.  I think it was trying to go to the right and I was trying to steer back to the left to get it going back in a straight line, and it wouldn’t respond, and I thought “Something is pushing me from behind, I am being pushed into this position, it shouldn’t be happening’, and then I realised I was into a skid with the back of my vehicle going to the left, and suddenly it seemed like I stopped the sideways skid and instead began to proceed straight across the road towards the embankment the other side of the road, and I thought ‘I’m going to hit that embankment’ and that was it.  That’s all I remember.

QYou remember something pushing you from behind.

AIt felt like something pushing me from behind, or another force operating on my vehicle.

QAt that time you became aware that you were losing control of your vehicle.

AYes.”

In cross examination he said that he moved into the left-hand lane and began to overhaul a slower moving vehicle in that lane.  He got within “a couple of car lengths” of that vehicle and checked his rear-vision mirror.  He said that he saw a largish F100 type or four wheel drive type vehicle in the right lane.  He said that vehicle was one to one and a half car lengths (18-20 feet he said) behind his vehicle.    When he checked his rear-vision mirror and saw the largish four wheel drive type vehicle in the right lane he did not observe any vehicles behind him in the left lane.  He indicated to change lanes, but decided to allow that vehicle in the right lane to pass before he changed lanes.  He did not know whether that vehicle went past but the next thing he recollected was his vehicle not responding to his steering.

He said he did not at any time turn his vehicle in the direction of the right-hand lane.

He agreed that he had told the police officer that he changed lanes.  He also agreed that he told the police officer that his vehicle was hit from behind by another vehicle.  Moreover, he accepted that he told the police officer that there were vehicles behind him in both lanes.

In relation to these inconsistencies he gave various explanations.  He said that he was hallucinating; that what he told the Police was only surmise; and that his memory had improved between the time of his interview and his giving of evidence.

The Crown called, as part of its case, Mr Robert Creek, who was the driver of a four wheel drive Toyota Land Cruiser travelling in the same direction as the appellant.  He was accompanied in his motor vehicle by his wife and his young child, who was then aged four.

He said that he was travelling in the right-hand lane behind three other cars in the same lane.  In the left lane there was a large four wheeled caravan being towed by a vehicle which was making slow progress travelling at about 70-75 kilometres per hour.

The three vehicles in the right-hand lane ahead of Mr Creek’s vehicle were travelling at a faster speed than his motor vehicle and the nearest vehicle in the right-hand lane had moved ahead of the slower moving caravan in the left-hand lane.  Mr Creek’s vehicle was gaining on the caravan and when he was at a distance of about fifteen to twenty feet to the rear of the caravan something blue flashed in front of his motor vehicle and struck the yellow Commodore coming in the opposite direction.  His evidence was that the blue vehicle came from the left-hand lane, drove between the caravan in the left-hand lane and his vehicle in the right-hand lane moved onto the incorrect side of the road and struck the yellow Commodore.  He said that he had no warning of the manoeuvre.  There was no contact between his motor vehicle and the motor vehicle which passed in front of him.

He said the force of the impact between the blue vehicle and the yellow Commodore was quite severe such that the engine from the utility was dislodged from the utility and was flung through the window of Mr Creek’s motor vehicle narrowly missing his four year old child.

It was put to him that in fact there was a collision between his vehicle and the blue utility.  He denied that.  He was pressed on the matter and he said that he did not know whether there had been a collision between his vehicle and the blue utility.

His evidence, however, remained consistent in cross examination that in a fraction of a second the blue utility came unannounced from the left-hand lane across his path in the right-hand lane and across the centre line and into the path of the yellow Commodore.  He stressed the speed at which the events occurred.

Mr Creek’s wife was not called but Mr Creek said in his evidence that she had been dozing before the accident occurred and had been traumatised by the accident and was now quite nervous.

The Crown tendered photographs of the accident scene and tendered a plan of the scene which depicted tyre marks, gouge marks, points of impact and measurements.  That plan had been prepared by a police officer who gave expert evidence in relation to how the collision occurred.

The photographs show distinctive tyre marks on the roadway.  There are tyre marks which have obviously been left by the vehicle being driven by Mr Creek which run directly up the roadway in more or less a straight line.  The tyre marks only cross over the centre line well after the points of impact.  There are other tyre marks which were obviously left by the blue utility driven by the appellant which crossed those tyre marks left by Mr Creek’s vehicle.

Those tyre marks are consistent with a vehicle, under heavy breaking, travelling across the right-hand lane for south bound vehicles and onto the side of the road for north bound vehicles.  Those tyre marks are, in my opinion, consistent with the evidence given by Mr Creek.  

The appellant made much of evidence given by one of the expert police officers, Mr Rowland, who said that he could not rule out the possibility that the appellant’s vehicle was clipped by another vehicle whilst it was in the left-hand lane.

The appellant also relied upon the evidence of the other expert police officer, Mr England, who agreed in cross examination that it was possible that Mr Creek’s vehicle could have drifted into the left-hand lane.  He was asked this:

“QCan you rule out the possibility of Mr Creek drifting into that left lane at any stage before point J.

ANo, I can’t.

QYou can’t rule that possibility out.

ANo, but if you are saying that’s when the contact took place -

QNo, I haven’t said that.  I have just asked the question.

ARight.

QYou can’t rule out the possibility that he could have drifted into that left-hand lane before point J.

ANo, I can’t.”

Both police officers were prepared to admit the possibility of the propositions put to them but it was no part of their evidence that that was how the collision occurred.

Indeed if one looks at the photographs it would be difficult to understand how it could be that Mr Creek’s vehicle, which left skid marks going directly down the road, could have been in the left-hand lane and caused the appellant’s utility to veer across the right-hand lane in the manner suggested by the appellant.  Having regard to the skid marks if Mr Creek’s car drifted into the left lane and came into contact with the appellant’s vehicle forcing that vehicle into the right hand lane then Mr Creek’s motor vehicle must have thereafter returned to the right hand lane straightened up and then come under heavy braking.  The difficulty with that scenario is that if there had been contact in the left lane the appellant’s vehicle would have been forced immediately into the right lane.  How could the skid marks left by the appellant’s vehicle cross over the skid marks left by Mr Creek’s vehicle?

Mr Creek’s evidence that he was in the right-hand lane at all material times was supported by Mr England.  He said that the skid marks indicated Mr Creek was travelling in a straight line in the right-hand lane.  He also said that having regard to reaction time, Mr Creek’s vehicle would have been in the right-hand lane for up to three seconds before the skid marks began.  He said that whilst Mr Creek was reacting he would have done nothing else and would in Mr England’s opinion have been travelling in a straight line.

Whilst he could not rule out the possibility that Mr Creek’s vehicle drifted into the left-hand lane that possibility could only have occurred when Mr Creek’s motor vehicle was north of the point before which Mr Creek began to react.  For the reasons I have already mentioned, even if that occurred, Mr Creek’s vehicle could not have struck the appellant’s vehicle in that left lane and returned to the right lane and reacted and braked and crossed the skid marks left by the appellant’s vehicle.

Mr England was also examined on whether, in his opinion, there was a collision between the appellant’s motor vehicle and Mr Creek’s motor vehicle before the appellant’s motor vehicle collided with the yellow Commodore.  Mr England said that in his opinion the blue utility driven by the appellant brushed past Mr Creek’s motor vehicle.  He said that it was not worth calling it an impact.  It was only a scrape - only enough to transfer paint, nothing more. 

It is convenient to deal with the grounds of appeal in reverse order.

The second ground of appeal raises the question of the adequacy of directions given by the learned Trial Judge in relation to the evidence which might have supported either a verdict of causing grievous bodily harm by driving in a manner dangerous as opposed to driving without due care and attention.

The learned Trial Judge directed the jury in relation to the elements of the offence charged on the information and the causing of bodily harm by dangerous driving.  He told the jury that if they were not satisfied beyond reasonable doubt that the offence as charged had been proved then they needed to consider whether the evidence disclosed conduct which amounted to one or other lesser offences; driving in a manner dangerous to the public and driving without due care.

In respect of the first of those alternative verdicts, he pointed out to the jury that driving in a manner dangerous to the public would need to be considered if they formed a view that they were not satisfied beyond reasonable doubt that the injuries to Mr Thiele were directly due to his manner of driving.  That was scarcely an issue in this case.  It was abundantly clear that Mr Thiele’s injuries arose solely out of the motor vehicle accident and were serious enough on any view of the evidence to satisfy the test of grievous bodily harm.

The learned Trial Judge then directed the jury that there was the further alternative verdict of driving without due care and attention.

He said in his directions that there was a real distinction between driving in a manner dangerous to the public and driving without due care and attention. 

In respect of the distinction between causing grievous bodily harm by driving in a manner dangerous to the public or driving in a manner dangerous to the public and driving without due care the learned Trial Judge categorised driving without due care as any material departure from the high standard of care which is due by anyone who drives a motor vehicle.  He described driving without due care and attention as a negligent act which is an ordinary risk where vehicles are driven by ordinary people who sometimes make mistakes.  On the other hand he said that there were some people who at times imposed on other users of the road a risk which is by no means a fair and necessary risk of the road in that they drive in a manner dangerous to the public because they impose upon other users of the road a risk which any reasonable person in the situation of a driver ought to recognise as a real danger to the public.  He described driving in a manner dangerous to the public as raising the sort of risk which is in no sense an ordinary or necessary risk of the road and to a manner of driving which is treated as a fairly serious crime.

It is true that His Honour did not, in his charge, direct the jury particularly in relation to what evidence might make out the offence charged on the information or the lesser offence of driving without due care.  I think, however, in the circumstances of this case that does not indicate any inadequacy on the part of the summing up because whether this driving was driving which could be categorised as driving in a manner dangerous to the public or driving without due care and attention was a matter of judgment to be made upon the whole of the evidence.

The jury was properly advised that they could only arrive at a verdict of guilty in relation to driving in a manner dangerous to the public if they were satisfied that the driving of the appellant was of a kind that could be described as raising a risk of a real danger to the public.  If they were not satisfied that they could so categorise the driving then they were told that a verdict of guilty in relation to driving without due care could only be brought in if they were satisfied that the driver was negligent.

As I say their determination of the character of the driving was a matter of judgment which did not require, in my opinion, specific directions in relation to the evidence.  Some Judges may have summed up by making direct reference to the evidence.  However to say that if the Crown case was accepted as presented that might give rise to a verdict of guilty in relation to driving in a manner dangerous to the public or if some other evidence was accepted that might only give rise to a verdict of driving without due care, is a matter of style only.  It was not, in my opinion, necessary for the learned Trial Judge to say more about the evidence that he did in relation to the charge on the information and the alternative charges.

Having said that I agree it would have been desirable if the learned Trial Judge, in his summing up, had crystallised the issue for the jury.  It would have been preferable if the learned Trial Judge had told the jury that it was not possible to convict the appellant unless they accepted Mr Creek’s account of the facts beyond reasonable doubt.  It was a single issue trial and in those circumstances it would have helpful to the jury to spell out that single issue so as to focus their minds upon that issue.

However for the reasons I have given I believe that the second ground must fail.

The first ground raises for consideration the question of whether or not the verdict is unsafe or unsatisfactory.  The determination, for this Court is whether this Court thinks that on the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  M v The Queen (1994) 181 CLR 487, 493 at 494.

In my opinion it cannot be said that this verdict is unsafe or unsatisfactory.  There was a body of evidence upon which it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  There was the evidence of Mr Creek supported as it was by the expert evidence of Mr Rowland and Mr England.  There was the graphic evidence of the photographs depicting the skid marks which were consistent with the evidence given by Mr Creek.  In my opinion the photographs were not consistent with the evidence of the appellant.

The evidence does not show discrepancies or inadequacies nor does it demonstrate a lack of probative force so as to lead me to conclude that there was any significant possibility that the appellant has been wrongly convicted.

Moreover this was a case which involved an assessment of the credibility of the witnesses.  The jury had the considerable advantage of seeing and hearing the witnesses, particularly Mr Creek.

The ground of appeal that the verdict is unsafe and unsatisfactory must be dismissed.

I would dismiss the appeal.

DOYLE CJ

I agree that the appeal should be dismissed.  I agree with the reasons of Lander J, and there is nothing that I wish to add to those reasons.

BLEBY J

I also agree that the appeal should be dismissed for the reasons given by Lander J.