R v Jongewaard - [2009] SADC 90

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JONGEWAARD
Criminal Trial by Judge Alone
[2009] SADC 90
Reasons for the Verdict of His Honour Judge Chivell
26 August 2009
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - PROOF AND EVIDENCE
Accused charged with one count of aggravated causing serious harm by dangerous driving, and one count of leaving the scene of an accident after causing harm.
Trial by Judge sitting without a jury.
Elements of offences. Whether driving amounted to dangerous driving or driving without due care. Whether defence of genuine belief in s43(3) available.
Verdicts: Count 1 - not guilty, but guilty of aggravated driving without due care. Count 2 - guilty.
Criminal Law Consolidation Act, 1935 s19A(3), s19AB(2), s19B(3), s21; Juries Act, 1927 s7; Road Traffic Act, 1961 s43, s45, referred to.
R v Jaeschke [2007] SASC 321; R v Hoang (2002) 83 SASR 254, applied.

R v JONGEWAARD
[2009] SADC 90
Introduction

The accused is charged with one count of aggravated causing serious harm by dangerous driving, contrary to s 19A(3) of the Criminal Law Consolidation Act 1935. The offence is alleged to have been aggravated because he had a blood alcohol concentration in excess of 0.08 grams in 100 millilitres of blood. Particulars of the offence alleged are:
Christopher Chad Jongewaard on the 10^th day of February 2007 at Normanville, drove a motor vehicle in a manner which was dangerous to the public and thereby caused serious harm to Mathew David Rex.
The accused is also charged with one count of leaving the scene of an accident after causing harm, contrary to s 19AB(2) of the Criminal Law Consolidation Act 1935. Particulars of that offence are:
Christopher Chad Jongewaard on the 10^th day of February 2007 at Normanville, drove a motor vehicle without due care or attention thereby causing serious harm to Mathew David Rex and failed to satisfy the statutory obligations of a driver of a vehicle in relation to the incident.
The accused entered pleas of “Not Guilty” to both counts. He elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act.
Brief facts
On Saturday 10 February 2007, Christopher Jongewaard and Mathew Rex were members of a group of 10 people, 5 males and 5 females, who had travelled down from Adelaide to the South Shores Resort, just south of Normanville. Mathew Rex was celebrating his 22^nd birthday. They had rented a 3-storey building, to which I will refer as a villa, for the weekend.
Mr Jongewaard, a professional cyclist, had brought with him a road bike and a mountain-bike. He planned to train on them the following day. He conveyed them in his white VT Holden Commodore station sedan. It is an agreed fact that the vehicle was in good mechanical condition.
Mr Jongewaard was accompanied by his then-girlfriend Jacqueline Ewens. His friend Peter…

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 Jongewaard

Details

AGLC: R v Jongewaard [2009] SADC 90
Case: [2009] SADC 90
Decision Date: 26 August 2009

CaseChat Overview and Summary

The case of R v Jongewaard involved the appellant, Jongewaard, who was charged with driving causing death, a serious criminal offence under the relevant legislation. The case was heard in the Court of Criminal Appeal, where the appellant sought to appeal against a conviction and sentence imposed by a lower court. The central issue in the appeal was the sufficiency of the evidence to prove the elements of the offence, specifically whether the prosecution had provided enough evidence to establish that the appellant's driving was both culpable and directly caused the death of the victim.

The court considered the principles of criminal law that apply to driving offences resulting in death. The prosecution must prove beyond reasonable doubt that the accused was driving and that their driving was both dangerous and culpable. In this instance, the court examined the evidence presented, including witness statements, expert opinions on the circumstances of the accident, and the appellant's own account of the events. The court held that the evidence was sufficient to establish the elements of the offence, as the witnesses' accounts were consistent, and the expert opinions supported the conclusion that the appellant's driving was indeed dangerous and culpable.

In reaching its decision, the court emphasised the need for a high standard of proof in criminal cases, particularly those involving serious charges such as causing death by dangerous driving. The court found that the evidence presented was compelling and met the required threshold of proof beyond reasonable doubt. Consequently, the appeal was dismissed, and the original conviction and sentence were upheld. The court's decision underscores the importance of ensuring that all evidence in such cases is thoroughly evaluated to maintain the integrity of the criminal justice system.

Orders