R v Inglis - [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

GRAY J. I would dismiss the appeal. I agree with the reasons of Anderson J.
ANDERSON J.
Introduction
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).
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.
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.
Perry J quotes Bowen CJ and Forster J in Chamberlain v The Queen (No 2) (1983) 72 FLR 1 at 12:
If some aspect of the summing up is made a ground of appeal, appellate courts regard it as of great importance that an experienced defence counsel failed to object to it at the trial. Such an omission points strongly to the conclusion that in the atmosphere of the trial itself there was nothing about the summing up calculated to lead to a miscarriage of justice.
Ms Fuller, who appeared for the appellant, properly acknowledged that she had not sought a redirection but asked that the matter be looked at in the overall context of the summing up. She submitted that she was faced with a very brief summing up by the trial judge and there was a risk that any request for a redirection and whatever redirection which followed, might result in a disjointed overview of the defence case to the detriment of her client.
In any event, as Ms Fuller points out, McHugh J in Fingleton v The Queen (2005) 227 CLR 166, said that if the summing up is defective then it still must be examined to see if the trial judge has properly discharged the obligation to give a fair summing up, regardless of whether a complaint is made.
In the circumstances the failure of defence counsel to raise complaints following the very brief summing up in this case is not fatal in my view to the matters being raised on appeal in this Court.
The dangerous driving particularised
Before the jury was empanelled, Ms Fuller argued that the prosecution was required to nominate the particular aspect of driving that it was alleging constituted the dangerous driving.
The trial judge later called on the prosecution to nominate the dangerous driving. In his address to the jury the prosecutor said:
… we’re talking, in this charge, driving post that white painted traffic island. Forget about the failure to turn right, it is what happened after that.
Therefore, the only aspect relevant to determine dangerous driving, was the driving of the appellant from the point of the white painted traffic island opposite Magazine Road up to the point where the accident occurred, that is, a distance of approximately 160 metres.
Whilst I regard that as unrealistic it was nevertheless the manner in which the trial proceeded after the prosecution elected to restrict the element of dangerous driving to that limited section of the roadway.
Certainly, in relation to the alternative of driving without due care, the driving prior to Magazine Road must have been relevant. It is to the appellant’s advantage that the prosecution elected to limit the scope of the alleged dangerous driving.
The grounds of appeal
The grounds of appeal are:
1.     The trial judge did not adequately put the defence case to the jury.
2.     The trial judge erred in failing to give a direction regarding foreseeable risk in the context of the second alternative verdict of driving without due care.
3.     The trial judge failed adequately to direct the jury regarding the question of whether the appellant’s driving was a substantial cause of the serious harm.
4.     The verdict of the jury was unsafe and unsatisfactory.
Counsel’s submissions
Ground 1
Ms Fuller argued that this was not a straightforward case and that therefore the judge should have isolated for the jury the particular features which rendered the driving dangerous. She submitted that there was nothing in the appellant’s driving which made it intrinsically dangerous. She further submitted that the judge merely gave what she terms a “classic direction” on driving in a manner dangerous and then summarised the arguments of counsel.
In fact the judge, after the direction regarding the vehicle being driven by the accused in a manner dangerous to the public, did say at page 5 of the summing up:
The defence case is that, at worst, the accused’s driving was a miscalculation or misjudgement.
However, he did not actually remind the jury of the elements of the defence case although he did remind the jury of some of the evidence.
The defence case was that the appellant was driving lawfully, at the appropriate speed limit, and in a lane in which he was permitted to drive. He knew that there was a considerable distance ahead before that lane ended. He intended to merge with traffic on the highway at some stage along that distance.
Ms Fuller submits that the driving was therefore not intrinsically dangerous. That to my mind, however, misses the point. It was after that point in time, namely, having seen the stationary vehicle, that the defendant drove in a manner dangerous to the public. It seems to me that had the judge fully summarised the defence case he would have told the jury that they must look to the driving from the time when the appellant first observed the stationary vehicle in the merge lane. He would have also highlighted from the prosecution case the fact that the appellant failed to either slow down by taking his foot off the accelerator or by applying his brakes and that he had a distance of approximately 60 metres in which to take proper evasive action.
The appellant, by his actions in continuing to follow the Skyline without any attempt to reduce the speed of his vehicle, did not take evasive action at the earliest opportunity. The judge would have left it to the jury to decide whether, in those circumstances, the appellant’s actions amounted to driving in a manner dangerous to the public.
Mr Kimber argued that the jury had to consider the speed of the appellant’s vehicle, its proximity to the Skyline vehicle and the bend in the road and then to ask whether in all of those circumstances the driving was driving in a manner dangerous to the public. In my view this accurately summarises the matters which the jury must have had at the forefront of their consideration. The jury inspected the roadway on a view and were familiar with the bend.
I have little doubt that had the defence case been summarised by the judge in the manner suggested by Ms Fuller, the jury would have reasoned that such driving in the circumstances was dangerous. If the jury had not been convinced beyond reasonable doubt that the driving was dangerous then they would have convicted the appellant of the lesser count of driving without due care.
The summing up of the trial judge was very brief. It occupied only 12 pages and much of the summing up was concerned with general directions to juries given in all criminal trials. In addition the judge recited some of the matters put by both counsel in their closing addresses. The appellant complains that the summing up was deficient. In particular, the appellant has argued that there was no relation of the key factual findings to the relevant elements of the offence.
The jury went on a view in this matter and would have been well aware from the summing up that they had to consider the appellant’s actions, including the speed at which he was travelling and his look-out and what he did when he observed the stationary vehicle in the merge lane. The jury was then asked to consider whether in all the circumstances the driving amounted to driving in a manner dangerous to the public.
The judge gave the appropriate directions in relation to the elements of the offence. The judge summarised the defence case on the essential issues, albeit briefly. It seems to me that the task for the jury, in relation to the appellant’s driving, was relatively easy. Clearly the driving of the appellant in the circumstances left open the conclusion that he was driving in a manner dangerous to the public. It was foolhardy in my view. He gave himself no real chance of avoiding a serious accident. He could have slowed down. He could have braked. He did neither. Had he reacted immediately when he saw the stationary vehicle, without the benefit of accurate calculations, it is not possible to say exactly what would have occurred, but it is possible to say that, at worst, he would have been involved in only a relatively minor impact with the rear of the stationary vehicle but possibly with no impact at all.
It is my view that the trial judge did put the substance of the defence case to the jury. He was not required to put every argument and refer to all the evidence to ensure that the defence case was properly put. It would have been preferable to conclude with a summary reminding the jury of the defence case but in my view the jury would have known the elements of the defence case.
It is my view therefore that, although it would have been preferable for the judge to have fully summarised the defence case, in the circumstances of this matter I do not consider that there is any chance of a miscarriage of justice. This was an obvious and compelling case of dangerous driving and the key elements of both the prosecution and defence cases were put before the jury.
In the circumstances therefore I would dismiss this ground of appeal.
Ground 2
In relation to the alternative verdict of driving without due care, Ms Fuller argues that the judge failed to give a direction regarding foreseeable risk. Ms Fuller acknowledged that the test is what a reasonable person ought to have realised and that as such the use of language involving “foreseeability” is not part of the test.
Her argument was really based on whether the appellant should have foreseen that there would be someone standing alongside a parked car in the merge lane. Even if concepts of foreseeability were to be imported into the test, it seems to me that there is no requirement to foreseeing the precise way in which a danger might be created. Ms Fuller submits that it was the fact of Mr Jung standing alongside his motor vehicle and changing his tyre which was not a foreseeable risk. There were plenty of other potential or foreseeable risks, including a broken down vehicle or a slow-moving vehicle, or an animal, all of which would have required a reasonable driver to make an assessment of how to deal with that risk once it arose.
Mr Kimber argued that the trial judge accurately captured all of the critical matters necessary when directing the jury as to the difference between driving in a manner dangerous to the public and driving without due care.
Mr Kimber concedes that there is no reference in the trial judges direction to foreseeable risk, but argues that having regard to R v Mayne (1975) 11 SASR 583, R v Duncan (1953) 11 SASR 592, R v Kamleh (1990) 51 A Crim R 435 and R v Hendriksen (2007) 98 SASR 571, foreseeable risk has never been part of a standard direction in a case such as this. The legal test does not require the trial judge to refer to foreseeable risk when directing the jury in regards to driving without due care.
King CJ in Kamleh said at 437:
The crime is committed by the act of driving in a manner which any reasonable person in the situation of the driver would recognise as dangerous in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public. Ordinary risks of the road include those arising from the sort of faulty driving and lack of care which must be expected, due to human frailty, from time to time, from the ordinary driver. The sort of driving which constitutes this crime is more serious than that. It is driving which a reasonable person in the situation of the driver would understand to be such as would give rise to a serious risk of injury to members of the public going beyond the ordinary risks of the road. It is driving which is therefore fit to be regarded as a serious crime.

It is my view that in the circumstances of this case any foreseeable risk argument must fail in any event when one assesses the position from the point where the appellant clearly had the stationary vehicle in his vision. There is nothing wrong in the judge’s direction regarding the alternative verdict. He was not required to refer to a foreseeable risk. Any risk was translated into a reality once he had the stationary vehicle under observation from a distance of 60 metres. I would dismiss this ground of appeal.
Ground 3
Ms Fuller argues that the judge failed to explain to the jury how there were other relevant potential causes for the accident. As was put to her during argument, the test is whether the jury is satisfied beyond reasonable doubt that the appellant’s driving was a substantial cause of the injuries suffered by Mr Jung. The other substantial causes referred to by Ms Fuller relate to the fact that the stationary vehicle was stationary because it had defective tyres, one of which had deflated. She argued that this was a substantial cause. Another substantial cause was the driving of the driver of the Skyline motor vehicle being followed by the appellant.
Mr Kimber submitted that the trial judge gave accurate directions to the jury that were right as a matter of law. The trial judge informed the jury that the appellant’s driving had to be “a substantial cause” and further went on to identify potential other causes.
Mr Kimber also argues that the test for causation does not involve a “but for” test and disagrees with the appellant’s formulation that “but for” the actions of the car in front and/or the four wheel drive, no collision would have occurred. Mr Kimber submits that this is not accurate as a matter of law. He relies on Royall v R (1991) 172 CLR 378 at 440:
… this Court has recently rejected the proposition that in the law of negligence the test of causation at common law is the “but for” test: March v. Stramare (E. & M.H.) Pty Ltd (1991) 171 CLR 506. In criminal cases, the common law has also refused to apply the "but for" test as the sole test of causation.
It is my view that the judge correctly summarised the situation when he said at page 8 of his summing up:
As I keep saying it is a matter for you, but it is at least open to find that because of other causes of the collision, that you cannot be satisfied beyond reasonable doubt that the driving of Mr Inglis was a substantial cause of the collision.
That in my view was an appropriate direction in the circumstances of this case.
I find it difficult to understand how a jury in this matter, having inspected the scene of the accident and faced with the appellant’s own version of what he decided to do when he observed the stationary vehicle, would not regard the appellant’s driving both as a substantial cause of the accident and of the injuries sustained by Mr Jung.
I would dismiss this ground of appeal.
Ground 4
Ms Fuller contends that there were a number of factors that would have left the jury with reasonable doubt regarding the quality of driving in question. These factors included: the lawfulness of overtaking in a merging lane, the parking of Mr Jung in the merging lane, the question of whether Mr Inglis was racing or chasing the Nissan Skyline, Mr Inglis’ speed and view when he first saw the stationary vehicle, the gap between Mr Inglis’ vehicle and the right hand lane traffic when he first saw the stationary vehicle and the Skyline’s sudden manoeuvre into the right hand lane which closed the gap for merging.
Ms Fuller submits that given the doubt the jury was likely to have had in regards to the above factors coupled with the errors in relation to grounds 1, 2 and 3, the conviction should be quashed and remitted for re-trial or in the alternative, a conviction of driving without due care should be substituted. She contends that there is reasonable possibility that the jury may have been mistaken or mislead. Ms Fuller argued that the evidence given by the lay witnesses in regards to speed, distance and location of both the vehicles driven by Mr Inglis and Mr Hinton offered no precise findings. As I have said earlier, the jury was entitled to act on the admissions of the appellant as to what he did and failed to do after he observed the stationary vehicle.
Mr Kimber submits that the evidence put forward to the jury was capable of establishing that the appellant was travelling in a merging lane, around a sweeping bend at high speed and close to the vehicle preceding him. He submits that it was open to the jury to consider not only the estimated speed given by the witnesses of their own vehicle and that of the appellant but also the location in which the appellant carried out his passing manoeuvre. This was capable of informing the jury of Mr Inglis’ speed and manner in which he was following the Skyline and his inability to avoid an emergency situation by braking or safely moving to his left into the right hand lane.
Mr Kimber submits that taking all the above matters into consideration, the jury was capable of determining that the appellant was driving in a manner dangerous to the public. I agree with that submission.
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.