R v HOCHBAUM - [2004] SASC 230

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HOCHBAUM
Judgment of The Court of Criminal Appeal
(The Honourable Justice Mullighan, The Honourable Justice Nyland and The Honourable Justice Anderson)
5 August 2004
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
Appellant found guilty of causing bodily harm by dangerous driving - dispute regarding appellant's blood alcohol level - whether error in trial Judge's directions to jury - whether elements of driving in manner dangerous adequately dealt with - whether blood alcohol evidence should have been admitted - whether proper use of expert evidence - whether remarks in prosecutor's closing address caused the trial to miscarry - appeal dismissed on all grounds.
District Court Rules 1992 Rule 9, referred to.
R v Duncan (1953) 11 SASR 592; R v Mayne (1975) 11 SASR 583; Kroon v R (1991) 55 SASR 476; R v Leaf-Milham (1987) 47 SASR 499; R v Greenham (1997) 25 MVR 495; R v Arnold [2003] SASC 422, applied.
R v E (1996) 39 NSWLR 450; McKinney v R (1991) 171 CLR 468; R v G [1994] 1 Qd R 540, distinguished.

R v HOCHBAUM
[2004] SASC 230
Court of Criminal Appeal: Mullighan, Nyland Anderson JJ

MULLIGHAN J: I would dismiss the appeal for the reasons given by Anderson J.
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by Anderson J.
ANDERSON J: This is an appeal against conviction. The appellant was found guilty by a majority verdict of causing bodily harm by dangerous driving in the District Court on Monday, 3 November 2003.
The Offence
The charge arose out of a collision between two motor vehicles on Cherry Gardens Road at Cherry Gardens, on 22 August 2001 at about 6.05 pm. The appellant was driving his four-wheel drive vehicle in a westerly direction, when he rounded the corner on the wrong side of the road and ran into Mrs Salt’s Ford Falcon. Mrs Salt (the victim) suffered two broken bones in her leg, fractures in both arms, a fractured collarbone and a shattered nose. It was alleged that the collision and resulting injuries to the victim occurred because the appellant had been driving in a manner dangerous to the public.
The appellant had spent the afternoon playing golf at the Blackwood Golf Club, and had eaten a meal and consumed some drinks with three associates before leaving the Golf Club at 6.00 pm. He then travelled down Cherry Gardens Road at dusk. It is the prosecution case, that the appellant’s car travelled for some considerable distance on the wrong side of the road as it passed a pedestrian witness, Mrs Kelleher, who said she observed the appellant’s vehicle, from her position on the side of the road, straddling the white lines. It then moved back to the incorrect side of the road. She said it continued on the wrong side of the road for 300m, before it passed out of her sight around a blind corner about 160m up the road from where the accident took place. The next person to see the appellant’s car was the victim, who said she saw the vehicle approaching her on the wrong side of the road from about 70m away and it continued coming toward her on the incorrect side of the road.
On the appellant’s case, Mrs Kelleher is quite simply mistaken. The appellant said he saw Mrs Kelleher on the side of the road and gave her a wide berth in case there were children with her. He agreed that he did straddle the white lines as Mrs Kelleher said. He said, however, that he straightened up on to the correct side of the road and drove around the next corner, until he came to a right hand bend where suddenly a dog appeared in the middle of the road, moving from the right hand side to the left. The appellant said he wasn’t initially sure if it was a dog and he swerved right to avoid it. He said that the victim did not have the headlights of her vehicle operating, and that he did not see her at all until the collision occurred. Mrs Salt said that she did have her lights on.
There was some dispute regarding the appellant’s blood alcohol level at the time of the collision. An application was made pursuant to Rule 9 of the District Court Rules 1992 to exclude evidence of the appellant’s blood alcohol level, namely, a reading which was taken at 7.40 pm on the day of the accident, on the basis that it was more prejudicial than probative. On the basis of the evidence which the prosecution proposed to lead, the appellant’s blood alcohol level at the time of the accident could have been between .05 or .07%. On the defence case, it could have been as low as .01 to .02%. The actual blood alcohol reading taken at 7.40 pm on 22 August 2001 was .045%, and following the learned trial Judge’s ruling to admit the evidence, this reading was put before the jury as an agreed fact. Also put before the jury as an agreed fact was the fact that the appellant had returned from Germany a few days before the accident. He had driven whilst in Germany, but only for the first week of his trip and of course that was on the opposite side of the road.
Ground 1 of Appeal
It was argued that the learned trial Judge erred as a matter of law in her directions to the jury regarding the elements of driving in a manner dangerous to the public.
In her summing up, the learned trial Judge began by setting out the three elements that the jury had to find proved beyond reasonable doubt in order to convict the appellant of the charge. Her Honour stated that the appellant must be proved to be the driver of the vehicle, he must have been shown to be driving in a manner dangerous to the public, and that by driving in that manner he must have been the cause of grievous bodily harm to the victim.
In relation to the second element, that is, driving in a manner dangerous to the public, the learned trial Judge distinguished between driving in a manner dangerous and driving without due care and attention. Her Honour stated that driving without due care and attention is the least serious on an ascending scale of driving offences, and that it covers “any material departure from the standard of care expected of all motorists”, which she classed as being a risk that we accept when using a public road. She differentiated this type of driving from that of people “who at times impose on other users of the road a risk which is by no means a fair or necessary risk of the road”. The learned trial Judge defined dangerous driving as being that “which an objective observer would recognise as creating a real danger to the public,” and pointed out that it was viewed through the eye of the reasonable observer and that it “covers the sort of departures which we see occasionally in ourselves”. She stated that proof of dangerous driving does not require any proof as to the appellant’s state of mind, and that an accused need not have intended to drive dangerously or even have adverted to the fact that he was driving dangerously in order to be guilty of the offence. Her directions accord with the well-accepted directions over many years: The Queen v Duncan (1953) reported at 11 SASR 592 and The Queen v Mayne (1975) 11 SASR 583.
In considering whether or not the prosecution had proved that the appellant was driving dangerously, the learned trial Judge said that the jury had to examine everything about his driving as he approached the corner on Cherry Gardens Road, including the nature and size of his vehicle, its condition, his condition, the weather and visibility and his knowledge of the road. She said that the evidence of eyewitnesses, the victim, the appellant and the various experts was also of relevance to this determination. Having given significant consideration to how the jury could use the evidence relating to the appellant’s consumption of alcohol (see below), the learned trial Judge pointed out that the issue of alcohol was just one of the matters they had to consider in assessing whether the appellant’s driving was in fact dangerous to the public. Her Honour stated again that the question to be determined was:
“whether he was driving in a manner which imposes upon others a risk which any reason [sic] person would recognise as a real danger to the public”.
The appellant argued that there was a misdirection by her Honour in relation to the description set out above in relation to the reasonable observer. King CJ in Kroon v The Queen (1991) 55 SASR 476 (at 478) said:
“The character of driving is tested not by reference to whether the danger to the public involved in the driving was appreciated by the accused but to whether he ought to have appreciated the danger; or to put it another way, whether a reasonable person in the situation of the accused would have appreciated the danger …”
White J in the same case (at 487) said:
“The driving to be assessed is that of any reasonable person, in the situation of the [accused] driver who ought to recognise what he is doing as a real danger to the public.”
The learned trial Judge did direct the jury that it was an objective test and further in my view the learned trial Judge pointed out numerous matters related to the driving and then specifically directed the jury that they had to examine everything about the accused’s driving. When her Honour used the words “reasonable observer” she did not relate that to a reasonable person in the situation of the accused driver as counsel submitted should have been the case.
In my view, whilst her Honour did not expressly state this in the terms suggested, what she did say in her direction to the jury was sufficient to encompass the essential points, which are the subject of this ground of appeal.
However, I do not accept the argument put forward by the appellant that there has been a misdirection because of the suggestion that the jury may have placed insufficient weight upon the other evidence. That other evidence included that of the witness Mr Aust who is dealt with later in a separate ground of appeal.
In my view, her Honour’s summing up in relation to the second of the three elements of the offence is correct. The other two matters were really not in dispute. This ground of appeal should be dismissed.
Ground 2 of Appeal
It was further argued that the learned trial Judge erred in admitting the evidence of the blood alcohol reading of the appellant. Alternatively, it was argued, she erred in failing to give adequate directions in relation to the permissible and impermissible use of the evidence of the appellant’s blood alcohol reading.
On the day of the accident, the appellant had been playing golf at the Blackwood Golf Club since 12.30 pm. The evidence was that he came into the clubrooms at about 5.15 pm. The barman in the club rooms said that he might have been there earlier, but conceded that he might have got there about 5.15 pm. According to the barman, the appellant had a meal of steak and chips and a coffee, and together with three other men he drank some wine. In all, two bottles were consumed by the four men. The barman didn’t know how much any one of them had to drink, but the appellant’s evidence was that he had two glasses of wine. The barman did not notice him to be affected when he left at 6.00 pm. The accident occurred at 6.05 pm, and the blood alcohol reading was taken at 7.40 pm, when it was .045%.
Mr Lokan, the expert analyst, explained that at the finish of drinking, there would have been some alcohol left in the stomach, such that the blood alcohol concentration would have continued to rise after the finish of drinking. In this case because the accident occurred so soon after the appellant stated he finished drinking, the blood alcohol concentration would have continued to rise for some time after the accident. The difficulty lies in determining just when the maximum blood alcohol concentration was achieved and by how much the blood alcohol concentration rose after the finish of drinking. Mr Lokan stated that in this case the blood alcohol concentration certainly continued to rise for some time after the time of the accident.
Reasons for Admitting the Evidence
In her reasons for ruling, the learned trial Judge observed that there would be a factual dispute at trial as to the actual amount of alcohol consumed by the appellant, and that both scenarios were accommodated by the opinion of the analyst, Mr Lokan, who had estimated that the blood alcohol reading could be anywhere in the range .02% to .07%. Her Honour referred to the general principle that evidence of the consumption of alcohol proximate to an accident will generally be admitted in a trial where an accused is charged with dangerous driving on the basis that it is relevant as one of the circumstances in the jury’s assessment of the accused’s manner of driving together with all the other relevant circumstances.
The learned trial Judge took the view that the factual issue of whether the blood alcohol level was more likely to be in the range of .01% to .02% or in the higher range of .05% to .07% was a matter for the jury to determine after hearing the evidence of the relevant witnesses. She observed that the jury would have the assistance of the observations of Dr White, an expert pharmacologist, as to the effects of blood alcohol levels at both the higher and the lower range, and said that the jury would in any case be capable of inferring without any medical evidence the effects of even moderate amounts of alcohol.
Summing Up on the Alcohol Issue
The learned trial Judge told the jury that it was for them to decide whether the appellant’s consumption of alcohol impaired his capacity to drive. Her Honour referred to the evidence given about the amount of alcohol consumed by the appellant that evening – she said that the appellant had told the jury he drank only two glasses of wine in the half to three quarters of an hour immediately prior to leaving the golf club at about five minutes to 6 o’clock. She also pointed to the evidence led by the Crown, which seemed to show the accused with three associates consuming two bottles of wine between them prior to departing from the club house.
Her Honour then said that on any view of the evidence, and having in particular regard to the expert evidence of Mr Lokan, and Dr White, it was unlikely that the blood alcohol level of the appellant would have exceeded .05%. She referred to Mr White’s evidence which suggested that a person with a blood alcohol level of .03% to .04% may be slowed down when required to make a difficult decision, but that at a level of only .01% to .02% some studies have suggested there may be a slight decrease in the probability of a crash. The learned trial Judge concluded that the evidence in the case did not necessarily support an inference that the blood alcohol level of the accused would have been any higher than .04% at most at the time of the accident.
The learned trial Judge told the jury that on the defence case they should not be satisfied beyond reasonable doubt that the appellant’s manner of driving was impaired by his consumption of alcohol and that the evidence really permitted an inference that his blood alcohol level at 6.05 pm could not have been higher than .01% to .02%. Her Honour told the jury that the issue of alcohol was just one of the matters they needed to consider when assessing whether the accused’s manner of driving on the night in question was in fact dangerous to the public – that is, whether he was driving in a manner which imposed upon others a risk which any reasonable person would recognize as a real danger to the public.
In my view, her Honour was quite correct in admitting the evidence in relation to the blood alcohol reading and in the directions that she gave relating to it. In particular, the evidence relating to the blood alcohol reading was relevant as one of the circumstances which the jury were required to consider as part of the accused’s manner of driving in conjunction with all the other relevant circumstances as suggested by her Honour. In my view, her Honour’s assessment of the whole of this evidence and the way that it should be treated is entirely appropriate and in accordance with the approval of this Court in R v Leaf-Milham (1987) 47 SASR 499 and in R v Greenham (1997) 25 MVR 495. In fact, if anything, her Honour’s direction was favourable to the appellant.
I add that there is no obligation on the prosecution in cases of this nature to prove the reason for the dangerous driving: see Greenham and R v Arnold [2003] SASC 422.
Ground 3 of Appeal
This ground was not pursued. This ground related to whether the learned trial Judge erred in directing the jury that the real issue in relation to the evidence regarding the presence of the dog was whether the jury could accept, even as a reasonable possibility, that the accused was telling the truth when he said that the saw a dog in the middle of the road and swerved to avoid it.
Ground 4 of Appeal
It was argued that the learned trial Judge erred in her directions to the jury regarding the use to which it could put Mr Aust’s evidence.
Mr Harry Aust, an engineer with an expertise in vehicle accident reconstruction, was called by the appellant. Mr Aust had prepared a number of plans with dotted lines marked on them representing different hypothetical scenarios based on differing estimates of the appellant’s speed as his car approached the bend, and showing the path the vehicle could have taken. All the scenarios culminated in a skid mark left on the road, which was also evident in the photographic evidence.
The learned trial Judge said in her directions to the jury that Mr Aust’s evidence showed that the skid mark could have been caused in the manner described by the appellant – namely, as a result of him swerving to the right to avoid the dog and then travelling into the oncoming car driven by the victim. Her Honour pointed out that Mr Aust had agreed that the skid mark was also consistent with the appellant having driven on the incorrect side of the road and collided with the victim’s vehicle in the manner contended for by the Crown. In summary, her Honour said that the jury would need to make up their own mind about Mr Aust’s evidence, and the matters he was asked to assume and whether that ultimately coincided in any way with the facts as they found them.
Again, it is my view that her Honour fairly described the use to which the jury could put Mr Aust’s evidence and her direction was appropriate and certainly not unfavourable to the appellant.
Ground 5 of Appeal
In his closing address, the prosecutor said:
“Mrs Salt didn’t see the car swerve. If he was where he said he was, she would have seen the headlights and she would have seen the car as it was swerving into her lane and hit her. She would have seen the dog. She said quite clearly that she didn’t see him swerve. He was on the wrong side of the road as he came around the corner and she didn’t see the dog. Members of the jury, why on earth would she make that up?”
It was argued that the trial miscarried as a result of the prosecutor in his address asking the jury to consider “why on earth would [Mrs Salt] make that up?”.
This question was not referred to in the address of counsel for the defence, nor did the learned trial Judge refer to it in her summing up, or correct it in any way.
The appellant submitted that this expression changed the onus of proof in the jury’s mind. Whereas the jury’s attention should have been focused on whether the Crown had proved the accused’s guilt beyond reasonable doubt, instead these words made them think that unless they were satisfied that Ms Salt was a liar her evidence should be accepted.

It was submitted on behalf of the appellant that this comment of the prosecutor implied that the appellant had a motive to give a false account of how the accident had occurred and unless he could demonstrate that Mrs Salt was lying, there was no basis upon which her testimony should be rejected. Also, it was submitted that although another witness to the appellant driving on the wrong side of the road shortly before the collision, Mrs Kelleher, was not mentioned in a similar manner by the prosecutor, the jury could apply the same reasoning to her. Reference was made to R v E (1996) 39 NSWLR 450 where the prosecutor in a sexual case posed much the same question in relation to the complainant. Sperling J, with whom the other member of the Court agreed, disapproved of such a comment because, in the circumstances of that case, he concluded that there was no direct evidence of motive to lie, the question posed by the prosecutor was to invite the jury to speculate as to what might be the possible motives for lying and to assess their likelihood. Secondly, the accused could be held accountable for failing to discern whatever motive there may be for a false story. Thirdly, the effect of the question is to remove the onus of proof. Sperling J said at 464:
“The question implies that, unless the jury is satisfied that the complainant is a liar, they should accept the complainant’s evidence and convict. In R v G [1994] 1 QD R 540, the trial judge had posed for the jury’s consideration whether the complainant’s evidence could be explained away because, ‘for some reason or other, or for no reason at all’, the complainant had decided to make a false allegation. On appeal, Davies JA said (at 543) that this passage could have led the jury to think that, unless they were satisfied that the complainant was a liar, they should convict; the direction by-passed the possibility that the jury might not be satisfied beyond reasonable doubt that the complainant’s story was true. I respectfully agree with Davies JA’s analysis.”
Lastly, his Honour said that there is the danger of encouraging the jury to use a “commonsense approach, contrary to the rigour of the criminal law”. In McKinney v The Queen (1991) 171 CLR 468, it was pointed out that the jury should not be directed that it was necessary to be satisfied that police had in fact lied before the jury may decline to accept what they say.
In the context of the present case and the summing up of the learned trial Judge, I do not think the task of the jury could have been deflected from considering whether the prosecution had proved beyond reasonable doubt that the appellant was driving in a manner dangerous to the public. There was no contest that the accident occurred on the appellant’s wrong side of the road. This is not a case where a motive for witnesses to lie arose. The issue was not why the witnesses gave the evidence about the appellant’s manner of driving and the absence of a dog, but whether their evidence was reliable and accurate. It was in that context that the prosecutor posed the question. In my view, the circumstances are very different from the types of circumstances discussed in R v E, R v G and McKinney v The Queen. The question posed by the prosecutor could not have had any of the consequences discussed in these cases.
Counsel contended that the learned trial Judge should have made a direction to the jury to correct this error.
This was not a significant issue in my view but was merely a means of expression and could have been said in many different ways with exactly the same effect and without objection. No direction was required by the learned trial Judge.
Ground 6 of Appeal
It was argued that the learned trial Judge erred in her directions to the jury by directing them in relation to the prosecution address that the accused had failed to mention the dog to the first two witnesses he spoke with after the accident.
In summing up, the learned trial Judge summarised the defence position, namely, that the appellant should be believed about the issue of the dog because not only are there many dogs in that area, but because the appellant has maintained consistently since a short time after the accident that that is what happened. Her Honour then noted the prosecution submission that the appellant failed to mention the dog to the first couple of witnesses he spoke with after the accident, and the prosecution suggestion that it was only after the seriousness of the accident had sunk in that the appellant came up with the story of the dog to explain what he was doing on the incorrect side of the road when he collided with the victim’s vehicle.
Counsel submitted that her Honour should have made a direction to the jury to the effect that, in a criminal trial there is no place for reasoning that an explanation is false simply because it was not given at an earlier opportunity. It was submitted that this is important in light of the fact that the accused sustained a concussion as a result of the accident.
This summary of the evidence by her Honour accords factually with the evidence of the first two witnesses to speak with the appellant after the accident, namely Mrs Kelleher and Dr Marshman, and is in my view a balancing exercise in the summing up to cover both the submissions of the prosecution and the defence.
In my view, her Honour dealt with this matter appropriately.
For the reasons set out therefore it is my opinion that each ground of the appeal should be dismissed.