R v Hendriksen

Case [2007] SASC 304

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v HENDRIKSEN

[2007] SASC 304

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Layton and The Honourable Justice Kelly)

17 August 2007

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - PROOF AND EVIDENCE

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN MANNER DANGEROUS TO PUBLIC

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP

Appeal against conviction – appellant convicted of causing bodily harm by dangerous driving, contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (SA) and failing to stop and give assistance after an accident, contrary to s 43 of the Road Traffic Act 1961 (SA) – whether trial Judge properly directed the jury on “driving in a manner dangerous to the public” – whether the omission of the phrase “in the situation of the accused” in his directions to the jury was an error – whether the trial Judge properly related the legal elements to the facts of the case – whether the trial Judge properly directed the jury about the defence case – whether the conviction for the dangerous driving offence was unreasonable or could not be supported by the evidence, or a miscarriage of justice.

Held: the trial Judge’s omission of the phrase, “in the situation of the accused” did not amount to an error – the trial Judge adequately directed the jury about the elements of the offence – the trial Judge’s directions about the application of the relevant law to the facts were insufficient – the trial Judge’s presentation of the defence case was inadequate in the circumstances – the conviction for the dangerous driving offence was not unsafe or unsatisfactory, or a miscarriage of justice – there was evidence on which it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt – appeal allowed – re-trial ordered.

Criminal Law Consolidation Act 1935 (SA) s 19A; Road Traffic Act 1961 (SA) s 43, referred to.
Alford v Magee (1952) 85 CLR 473; M v The Queen (1994) 181 CLR 487; R v AJS [2005] 12 VR 563; R v Von Einem (1985) 38 SASR 207; R v Zilm [2006] 14 VR 11; RPS v The Queen (2000) 199 CLR 620, applied.
Hill v Baxter [1958] 1 QB 277; Jiminez v The Queen (1992) 173 CLR 572; Kroon v The Queen (1991) 55 SASR 476; McBride v The Queen (1966) 115 CLR 44; R v Coventry [1938] SASR 79; R v Coventry (1938) 59 CLR 63; R v Mayne (1975) 11 SASR 583, discussed.
Domican v The Queen (1992) 173 CLR 555; England v The Queen (Unreported, CCA(SA), King CJ, Cox and Bollen JJ, 19 June 1991); Giorgianni v The Queen (1985) 156 CLR 473; Pollitt v The Queen (1992)…

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AGLC
R v Hendriksen [2007] SASC 304
Case
[2007] SASC 304
Decision Date

CaseChat Overview and Summary

In the matter of R v Hendriksen, the appellant was convicted of causing bodily harm by dangerous driving and failing to stop and give assistance after an accident. The appellant appealed against the conviction, arguing that the trial judge erred in the directions given to the jury. The court was required to determine whether the trial judge properly directed the jury on the elements of the offence and whether the omission of a phrase in the directions constituted an error. Additionally, the court had to consider if the trial judge properly related the legal elements to the facts of the case, directed the jury about the defence case, and if the conviction was unreasonable or could not be supported by the evidence, or a miscarriage of justice.

The court found that the trial judge's omission of the phrase "in the situation of the accused" did not amount to an error. The trial judge adequately directed the jury about the elements of the offence, but the directions about the application of the relevant law to the facts were insufficient. The trial judge's presentation of the defence case was inadequate in the circumstances, and the jury was at risk of having a one-sided view of the issues in carrying out its duties. However, the court was not satisfied that it was not open to the jury to find the appellant guilty of the offence, and therefore the conviction for the dangerous driving offence was not unsafe or unsatisfactory, or a miscarriage of justice.

The court concluded that there was evidence on which it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt, and therefore the appeal was allowed, the convictions were set aside, and a re-trial was ordered on Counts 2 and 3 on the Information. The Chief Justice and the other judges agreed with the decision, expressing their agreement with the reasons expressed by the Chief Justice, particularly in relation to grounds 1 and 2 of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

However, in relation to the other evidence outlined above, I agree with Mr Henchliffe’s submission that these were aspects of the defence case which should have properly been put to the jury. Whilst the trial Judge summarised the two alternative bases of the prosecution case, and provided general directions about the jury’s role as the trier of fact, inferential reasoning, the elements of the offences and some aspects of the evidence and submissions of counsel, he failed to address important aspects of the evidence relevant to the defence case and failed to explain how they related to the legal issues. Having viewed the summing up as a whole, I consider that the trial Judge did not fairly presented the defence case to the jury, and as a consequence of this failure, the Jury was at risk of having a one-sided view of the issues in carrying out its duties. Ground 4 – Conviction on Count 2 unreasonable and not supported having regard to the evidence, or a miscarriage of justice The appellant pointed to a number of alleged evidentiary deficiencies, which he submitted, rendered the verdict on Count 2 to be unreasonable, not supported by the evidence or a miscarriage of justice. These alleged deficiencies included:·the absence of direct evidence supporting the tyre marks on the road having been left by the appellant vehicle;·the overwhelming evidence of witnesses that the car did not brake;·the unlikelihood of tyre marks being left by the front wheel of the appellant’s vehicle;·the conflict in evidence as to where the point of impact occurred; and·the position of Mr Jaric on the road. In considering these alleged deficiencies and inconsistencies as referred to by the appellant, it is necessary to have regard to the test to be applied. In M v R,[71] the majority (Mason CJ and Deane, Dawson, Toohey and Gaudron JJ) concluded that in order for this ground to be made out, an appellate court would need to be satisfied that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence. However, in answering that question, the appellate court must pay full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and that the jury has had the benefit of having seen and heard the witnesses.[71] (1994) 181 CLR 487. Applying this test, and bearing in mind that many of the points made by the appellant concern the assessment of witnesses which differed, I am not satisfied that it was not open to the jury to find the appellant guilty of Count 2 as so much depended on the jury assessment of which witnesses they were prepared to accept as having given credible evidence and their findings on disputed evidence. I do not consider that Ground 4 has been made out. I now turn to whether or not a re-trial should be ordered. In view of the fact that I am not satisfied that Ground 4 has been made out, this is a sound basis upon which the general principle should be applied, namely that if there is evidence upon which a jury might well convict the appellant, the interests of justice will generally demand a re-trial. I do not consider that it would be unjust to the appellant in the particular circumstances to order a re‑trial.Conclusion

Decision

Reasons for decision

In view of the fact that I am not satisfied that Ground 4 has been made out, this is a sound basis upon which the general principle should be applied, namely that if there is evidence upon which a jury might well convict the appellant, the interests of justice will generally demand a re-trial. I do not consider that it would be unjust to the appellant in the particular circumstances to order a re‑trial.Conclusion For the aforementioned reasons I would allow the appeal, set aside the convictions and order a re-trial on Counts 2 and 3 on the Information. KELLY J: I agree that the appeal should be allowed for the reasons expressed by the Chief Justice and in particular his comments about grounds 1 and 2 of the appeal.

Ratio Decidendi

Legal Principle Established

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