R v Jaeschke - [2007] SASC 321

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JAESCHKE
[2007] SASC 321
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Layton)
31 August 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF SUMMING UP AS A WHOLE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
Appeal against conviction - causing death by dangerous driving - whether Judge gave jury adequate instructions on application of general directions about dangerous driving to circumstances of case - whether Judge erred in admitting, or failing to direct, on certain expert evidence - whether in the circumstances there has been a miscarriage of justice.
Held - summing up fair and adequate - no risk of miscarriage of justice resulting from admission, or treatment, of expert evidence - appeal against conviction dismissed.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Death by dangerous driving - appeal against sentence - discussion of factors considered by Judge in sentencing.
Held - head sentence within appropriate range - non-parole period relatively merciful - open to Judge not to suspend sentence - appeal against sentence dismissed.
Criminal Law Consolidation Act 1935 (SA) s 19A, referred to.
R v Greenham (1997) 25 MVR 495, discussed.
Jiminez v The Queen (1992) 173 CLR 572; Makita (Australia) Pty Ltd v Sprowls (2001) 52 NSWLR 705; McBride v The Queen (1966) 115 CLR 44; The Queen v Mayne (1975) 11 SASR 583, considered.

R v JAESCHKE
[2007] SASC 321
Court of Criminal Appeal: Doyle CJ, Anderson and Layton JJ

DOYLE CJ: Mr Jaeschke was found guilty by a jury of causing the death of Mr Cannon by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). The trial took place in the District Court.
He appeals by leave against the conviction and against the sentence imposed on him. The appeal against conviction raises three issues.
First, whether the Judge gave the jury adequate instructions on the application of his general directions about dangerous driving (which are not criticised) to the circumstances of the case.
Second, whether the Judge erred in admitting certain expert evidence, or in failing to direct the jury to disregard it. Mr Lokan gave evidence, based on certain assumptions about the amount of alcohol consumed by Mr Jaeschke, as to the likely concentration of alcohol in Mr Jaeschke’s blood at the relevant time. Professor White gave evidence, drawing in part on the evidence from Mr Lokan, about the effect of alcohol on the physical and mental capacities of a normal person, and on the ability of such a person to drive a motor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jaeschke

Details

AGLC: R v Jaeschke [2007] SASC 321
Case: [2007] SASC 321
Decision Date: 31 August 2007

CaseChat Overview and Summary

The case of R v Jaeschke involved an appeal against conviction and sentence for causing death by dangerous driving. The appellant, Mr Jaeschke, contested both the sufficiency of jury directions by the trial judge and the admissibility of certain expert evidence regarding alcohol consumption. The appeal also included a challenge to the sentence imposed.

The central legal issues were whether the trial judge adequately instructed the jury on the application of general directions about dangerous driving to the specific circumstances of the case and whether there was an improper admission or rejection of expert evidence. Furthermore, the court needed to determine if these errors resulted in a miscarriage of justice and whether the sentence was appropriate.

In addressing these issues, the court found that the trial judge's summing up was fair and adequate, providing clear instructions on the principles of dangerous driving and effectively applying them to the case's facts. The expert evidence on alcohol consumption was deemed relevant to explain the appellant's defective lookout, aligning with the prosecution's case. The court concluded that the trial judge's handling of this evidence did not result in a miscarriage of justice. Regarding the sentence, the court found it to be within an appropriate range, with the non-parole period being relatively merciful. The overall assessment was that the judge's discretion in sentencing was appropriately exercised.

The appeal against both conviction and sentence was dismissed. The reasoning upheld the trial judge's directions and the admissibility of the expert evidence, affirming that the jury's verdict and the sentence imposed were just and within the bounds of legal propriety.

Orders

Orders of the court

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Background

Background to the litigation

The Judge explained to the jury the meaning of driving in a manner dangerous to the public consistently with these authorities. He did so in general terms, and in a manner that draws on the summing up by Napier CJ in Duncan’s case. This was done clearly and adequately, early in the summing up. As well, the Judge gave to the jury a written memorandum that set out in full this part of his directions. No complaint was made about this aspect of the Judge’s directions.The adequacy of the Judge’s directions applying the law to the facts Mr Edwardson QC, counsel for Mr Jaeschke on appeal, submits that the Judge did not sufficiently relate the general directions about driving in a manner dangerous to the public to the facts of the case. He submits that the Judge did not direct the jury’s attention sufficiently to the need to assess Mr Jaeschke’s driving from the position of a reasonable person in Mr Jaeschke’s situation. There was no evidence as to the lighting conditions at the place where the accident occurred. There was no evidence about the capacity of a reasonable person to identify an object on the road such as the object on the road (as he thought) that Mr Jaeschke encountered, to realise that this object was in fact a person, and then to take evasive action. There was no evidence about the distance at which Mr Cannon’s body would have been visible from an approaching vehicle travelling with its lights on low beam. There was no evidence about the reaction time of an average driver in such a situation. Although these points relate also to the third ground of appeal, Mr Edwardson submits that the Judge should have directed the attention of the jury specifically to these matters, and at the least should have related them to the situation of a reasonable person in Mr Jaeschke’s position as driver. Mr Edwardson submits that the Judge should have asked the jury, in terms, to consider whether a reasonable person in the situation of Mr Jaeschke would have observed Mr Cannon lying on the road in sufficient time to take evasive action and to avoid running over him. In approaching this matter, it is helpful to bear in mind a comment made by Barwick CJ in McBride. He said at 49:Naturally the first matter in the case of a charge that the vehicle has been driven in a manner which is dangerous to the public is to determine and present to the jury what precisely is the manner of driving which the Crown alleges the accused has pursued and which it claims is dangerous to the public. If that manner of driving is not by its very description potentially dangerous to the public, it would be necessary to isolate for the jury the features of it which the Crown charges to be so dangerous. I have already outlined how the prosecution put its case to the jury. In brief, it was that if the jury were satisfied that Mr Jaeschke drove over Mr Cannon without taking any evasive action, having regard to the circumstances the jury could infer that his lookout was so defective as to amount to dangerous driving. This concept was put by the prosecutor in a straightforward manner. It was put in his opening address and in his closing address.

Evidence

Evidence Before The Court

I do not consider that this ground of appeal is made out.The expert evidence There is no doubt that the evidence given by various eye witnesses about the consumption of alcohol by Mr Cannon and by Mr Jaeschke was relevant. This is not a case in which the prosecution suggested that Mr Jaeschke was, because of alcohol, incapable of exercising effective control of his vehicle, and so driving in circumstances that were dangerous. The prosecution case was that the consumption and effect of alcohol might explain why Mr Jaeschke’s lookout was defective. The main issue for the jury, in this respect, was whether Mr Jaeschke’s lookout was defective, and so defective that he was driving in a manner dangerous to the public. The effects of alcohol were also of some relevance to the reliability of what Mr Jaeschke said to police on the night. This case is the kind of case referred to by Cox J in R v Greenham (1997) 25 MVR 495, when he said at 498:… However, the more common situation under s 19a is a moderate (or unknown) quantity of alcohol coupled with some bad driving. Often the expert will say that the effect of the alcohol, viewed in isolation, is inconclusive – the defendant may or may not have been able to exercise effective control – although the jury, with the evidence of bad driving before them, may be willing to make a positive finding of incapacity. The jury, in other words, may perceive a causal link between the alcohol and the bad driving and conclude in all the circumstances that the vehicle was driven dangerously. …Cox J went on to say at 500:The relevant element of the offence created by s 19a is the dangerous driving, not the cause of it. The jury will be called upon to make a qualitative judgment about a defendant’s manner of driving in the light of all the circumstantial evidence. Typically there will be one or more acts of overtly bad or at least questionable driving – high speed, veering across the road, poor lookout and so on – and sometimes evidence of a causative or explanatory kind as well. For instance, the defendant may have told someone before he got into his car that he was having trouble keeping awake, or his driving error may have coincided with his using a mobile telephone, or there may be evidence of an alcohol intake which, according to an expert, could have affected the defendant’s driving faculties. The jury may take the alcohol evidence into account if, after considering all the evidence including the act or acts of driving, they are satisfied that the alcohol had an influence on the defendant’s manner of driving. … Mr Lokan gave evidence of a kind often given in cases like this. He was asked to assume that a person consumed a certain number of specified drinks of specified alcoholic strength between 6.00 pm on 14 February and 12.30 am on 15 February. Two different bases were put to him. One appears to be based on what Mr Jaeschke said to the police (he said in evidence it was not correct) and the other added to that basis some evidence about the consumption of some drinks to which Mr Jaeschke had not referred. Mr Lokan was asked to assume that the person was sober at 6.00 pm, and weighed 110 kilograms. He was asked to estimate the blood alcohol concentration of the hypothetical person at 2.30 am.

Decision

Reasons for decision

The appeal against sentence should be dismissed.Conclusion For those reasons I would dismiss the appeal against conviction and the appeal against sentence. ANDERSON J: In this matter I have had the advantage of reading in draft the reasons of Doyle CJ. I agree with His Honour’s conclusions both in relation to the appeal against conviction and also the appeal against sentence. The facts are set out in the judgment of Doyle CJ. The jury, by a majority, must have concluded that Mr Jaeschke’s lookout on the night in question was defective. Having regard to his lookout in the circumstances in which he was driving, the jury must have then proceeded, on the basis of the directions given to them, to find that his driving was dangerous. I agree with Doyle CJ’s reasoning as to the directions given by the trial judge, and in particular that the jury was properly instructed as to the features of Mr Jaeschke’s driving which the prosecution relied on as being dangerous. The accident happened on a relatively straight stretch of road at night in a remote country area. Mr Jaeschke’s evidence was that he was driving with his lights on low beam at a speed of just less than 100 kilometres per hour. Mr Jaeschke had consumed alcohol prior to driving and the relevance of the evidence as to his consumption of alcohol was, as suggested by Doyle CJ, to give a potential explanation for his defective lookout as distinct from any suggestion that he was so affected by alcohol that he should not have driven. I agree with the reasons of Doyle CJ in relation to the admission of evidence relating to the consumption of alcohol and any conclusions to be drawn from that evidence. It seems to me that in relation to Mr Jaeschke’s driving, having consumed some alcohol and then having proceeded to drive on a country road at night with his lights on low beam at a speed of just less than 100 kilometres per hour, it was incumbent upon Mr Jaeschke to be particularly vigilant. His choices were to drive with his lights on high beam, to give him more chance of observing something on the roadway, or to drive at a lower speed or both. His evidence about not using high beam so as not to attract kangaroos seems somewhat strange. However, if the evidence was accepted then it certainly required an even higher degree of vigilance by Mr Jaeschke, because he must have reasoned that he needed low beam because there was some likelihood of encountering kangaroos on the road. Mr Jaeschke said that he was about 20 or 30 metres away from an object on the road when he first saw it. He said he thought it was a kangaroo. If he had applied his brakes at that stage he might have avoided a severe impact with the object on the road. It seems that he did not apply his brakes at any stage. I cannot see that it makes any difference whether he thought that it was a kangaroo or any another animal or object on the road because without attempting to stop or minimise his impact speed he increased the risk of a serious accident. That in turn put other road users at risk should there be a vehicle travelling behind him or coming towards him from the opposite direction.

Ratio Decidendi

Legal Principle Established

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