R v Inglis

Case [2012] SASCFC 12

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v INGLIS

[2012] SASCFC 12

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Stanley)

2 March 2012

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - DANGER TO PUBLIC

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PROCEDURE - DIRECTIONS TO JURY

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - CAUSATION

Appeal against conviction – appellant charged with one count of causing serious harm by dangerous driving – whether trial judge adequately put defence case to jury – whether trial judge erred in failing to give a direction of foreseeable risk – whether trial judge adequately directed the jury regarding the question of whether the driving was a substantial cause of the serious harm – whether the verdict was unsafe and unreasonable.

Held: Appeal dismissed – trial judge gave appropriate directions in relation to the elements of the offence and summarised the defence case on the essential issues – "forseeability" is not part of the test for driving without due care – trial judge gave adequate directions that the driving was a substantial cause of the injuries suffered – the jury was capable of determining that the driving was in a manner dangerous to the public – verdict not unsafe or unreasonable.

Criminal Law Consolidation Act 1935 (SA) s 19A, referred to.
R v Aziz [1982] 2 NSWLR 322; R v B & D (1993) 66 A Crim R 192; Chamberlain v The Queen (No 2) (1983) 72 FLR 1; R v Kamleh (1990) 51 A Crim R 435; Royall v R (1991) 172 CLR 378, discussed.
Fingleton v The Queen (2005) 227 CLR 166; R v Mayne (1975) 11 SASR 583; R v Duncan (1953) 11 SASR 592; R v Hendriksen (2007) 98 SASR 571, considered.

R v INGLIS
[2012] SASCFC 12

Court of Criminal Appeal:  Gray, Anderson and Stanley JJ

  1. GRAY J.                I would dismiss the appeal. I agree with the reasons of Anderson J.

  2. ANDERSON J.

    Introduction

  3. The appellant was found guilty by a jury of one count of causing serious harm by dangerous driving contrary to s 19A of the Criminal Law Consolidation Act 1935 (SA).

  4. The appellant has appealed on the basis that the defence case was not put adequately to the jury, that the trial judge did not properly direct the jury regarding foreseeable risk in relation to the alternative charge of driving without due care and attention, that there was an inadequate direction on whether the appellant’s driving was “a substantial cause” of the serious harm and finally that the verdict of the jury was unsafe and unsatisfactory.

    Background

  5. The appellant was driving his motor vehicle at approximately 8.00 am on 27 February 2009 in a westerly direction along the Salisbury Highway. The Salisbury Highway is a divided highway with…

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R v Inglis [2012] SASCFC 12
Case
[2012] SASCFC 12
Decision Date

CaseChat Overview and Summary

The appellant, R v Inglis, appealed against a conviction for causing serious harm by dangerous driving. The appeal was heard by Gray, Anderson, and Stanley JJ in the Court of Criminal Appeal. The dispute centred on the adequacy of the trial judge's directions to the jury regarding the defence case, the concept of foreseeable risk in relation to an alternative charge, and the substantial causation of the victim's injuries.

The legal issues before the Court of Criminal Appeal included whether the trial judge had adequately presented the defence's case to the jury, whether a direction on foreseeable risk was necessary for the offence of driving without due care and attention, and whether the jury had been adequately directed on the issue of whether the appellant's driving was a substantial cause of the serious harm suffered by the victim. The court also considered whether the jury's verdict was unsafe and unreasonable given these alleged deficiencies.

The Court of Criminal Appeal dismissed the appeal, finding that the trial judge had provided appropriate directions concerning the elements of the offence and had adequately summarised the defence's position on the essential issues. The court held that "foreseeability" is not a component of the test for driving without due care. Furthermore, the judges were satisfied that the trial judge's directions regarding the appellant's driving being a substantial cause of the injuries were adequate, and that the jury was capable of concluding that the driving was indeed dangerous to the public. Consequently, the verdict was not deemed unsafe or unreasonable.

Orders

Orders of the court

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Background

Background to the litigation

The appellant has appealed on the basis that the defence case was not put adequately to the jury, that the trial judge did not properly direct the jury regarding foreseeable risk in relation to the alternative charge of driving without due care and attention, that there was an inadequate direction on whether the appellant’s driving was “a substantial cause” of the serious harm and finally that the verdict of the jury was unsafe and unsatisfactory.Background The appellant was driving his motor vehicle at approximately 8.00 am on 27 February 2009 in a westerly direction along the Salisbury Highway. The Salisbury Highway is a divided highway with a substantial division between the roadway for vehicles travelling west and the roadway for vehicles travelling east. The dividing section is comprised of some small trees and shrubs. The highway prior to the approach to Magazine Road consisted of two lanes for vehicles travelling in a westerly direction. The appellant was travelling in an extra lane for traffic which wished to turn right and travel north along Magazine Road. He was following another vehicle, a Nissan Skyline. The extra lane which commenced some distance before Magazine Road created a third lane and was marked with right turn arrows painted on the roadway. Both the appellant and the driver of the Skyline, Mr Hinton, were driving at approximately 90 kilometres per hour which was the speed limit for the road in that area. The turn-right lane was used by both the appellant and Mr Hinton as a means of overtaking vehicles travelling in the right hand lane of the western side of the roadway. In other words they both moved to the right and into the right turn lane even though they did not intend turning right. After passing the turn-off to Magazine Road they continued on in a westerly direction, still travelling in the extra lane (a merge lane), which was for vehicles entering the highway from Magazine Road. From the turn-off to Magazine Road and beyond it to the west, for a distance of approximately 460 metres there was a gradual bend to the right. Some 160 metres from Magazine Road to the west, a Mr Jung had stopped his vehicle in the extra or merge lane to change a flat tyre. The merge lane here was intended for the use of vehicles entering the highway from Magazine Road and proceeding to travel in a westerly direction so that those vehicles could eventually merge with the two lanes of traffic travelling west on the highway. A collision occurred when the appellant, after following the Nissan Skyline, saw Mr Jung’s stationary vehicle in the lane in front of him. The Skyline made a sudden manoeuvre by veering left into the right hand lane for traffic travelling west and the appellant attempted to position his vehicle so as to avoid Mr Jung attending his stationary vehicle and also avoid the adjacent traffic on the highway. Unfortunately he collided with Mr Jung who was alongside his stationary vehicle changing the flat tyre. He was attending to the flat tyre on the left or passenger side of his vehicle. His vehicle substantially blocked the merge lane.

Evidence

Evidence Before The Court

Although a number of witnesses were called to give estimates of speed and distances, it is really only necessary in my view to analyse the evidence of the appellant. His own evidence and the admissions contained within his evidence was evidence from which the jury could reason that he drove dangerously.Analysis of appellant’s evidence The appellant was familiar with this stretch of roadway. The appellant saw the stationary vehicle parked in the merge lane when he was approximately 60 metres away and when he was driving approximately three or four car lengths behind the Skyline driven by Mr Hinton. He was then travelling at approximately 90 kilometres per hour. Both he and Mr Hinton were travelling in the merge lane, having been in that lane since passing the turn-off to Magazine Road. The appellant believed that there were sufficient gaps in the traffic on the highway so that he could safely merge even after he saw the stationary vehicle blocking the merge lane. Mr Hinton swerved to the left without braking, which caused the traffic in the right lane of the highway to concertina thus leaving the appellant without the gaps he had originally observed. The appellant believed he had three options, namely to collide with the stationary vehicle, to swerve left into the right hand lane and potentially collide with other vehicles in that lane, or to position his vehicle so as to avoid Mr Jung attending his stationary vehicle and also avoid the adjacent traffic on the highway. He chose the third option, but unfortunately struck Mr Jung. The appellant neither applied his brakes nor slowed down as he continued to travel at approximately 90 kilometres per hour in his approach to the stationary vehicle.No complaint made at trial Mr Kimber SC for the Director argued that an important consideration to be taken into account is the fact that there was no complaint made by Ms Fuller, who was counsel in the trial, following the summing up in regard to any matters relevant to the grounds of appeal. Mr Kimber relies on R v Aziz [1982] 2 NSWLR 322 at 331:What is important to be borne in mind is that the absence of objection by counsel, in particular to matters involving criticism of the form, content or balance of the summing-up, furnishes a basis for concluding that, in the context of the atmosphere at it existed at the trial, and in the contemporary awareness of the manner in which the summing-up was spoken, there was not apparent at the time of the trial any reasonable ground for concern regarding the adequacy and fairness of the summing-up. The Court of Criminal Appeal, no matter how experienced its members, and no matter how comprehensive the written record may be, can never hope to recapture the full texture of the atmosphere in which the question of the accused's guilt was submitted to the jury in the concluding stages of the trial. He further relies on R v B & D (1993) 66 A Crim R 192 at 197, where Perry J states that when one is asking, in the atmosphere of the trial, were things done adequately, it is a relevant consideration to bear in mind whether there was any complaint about the summing up. He says:Looking at the matter broadly, it is not for this Court to make too nice an analysis of the summing up divorced from the atmosphere of the trial. This is so particularly when no complaint to the trial judge was made by counsel for the accused on matters subsequently sought to be agitated before this Court on the appeal.

Decision

Reasons for decision

GRAY J (dissent) ANDERSON J (dissent)
There is nothing over and above the matters which have already been discussed in the other grounds of appeal which in my view support the contention that the verdict was unsafe and unsatisfactory. In my view it was clearly open to the jury to conclude that the appellant drove in a manner dangerous to the public and that his driving was a substantial cause of the injuries to the victim. I would therefore dismiss this ground of appeal.Conclusion For the reasons set out I would dismiss the appeal. STANLEY J: I would dismiss the appeal. I agree with the reasons of Anderson J.

Ratio Decidendi

Legal Principle Established

Established by:

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