R v Ko - [2016] SADC 66

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KO
Criminal Trial by Judge Alone
[2016] SADC 66
Reasons for the Verdict of His Honour Auxiliary Judge David Smith
24 June 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
Accused charged with Causing Death by Dangerous Driving contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) - Accused drove across continuous double lines on a country highway contrary to r 139 of the Australian Road Rules (SA) - head-on collision with oncoming car resulting in death of the driver of oncoming car - primary issue was whether Accused's driving was dangerous but consideration also of the Accused's claims of amnesia and involuntariness.
VERDICT: Guilty.
Criminal Law Consolidation Act 1935 19A(1); Australian Road Rules (SA) r 132, referred to.
R v Coventry (1938) 59 CLR 633; Kroon v The Queen (1991) 55 SASR 476; R v Cain (2011) 111 SASR 301; R v Uduma [2013] SASCFC 2; R v Arnold [2003] SASC 422; Douglass v The Queen (2012) 290 ALR 699; R v Singh [2003] SASC 344; R v Richards (1994-1995) 77 A Crim R 1; Broadhurst v The Queen [1964] AC 441; TNT Management Pty Ltd v Brooks (1979) 23 ALR 345; Caswell v Powell Duffryn Associated Colleries Ltd [1939] 3 All ER 722, considered.

R v KO
[2016] SADC 66
Introduction

The Accused Sung-Hung Ko is charged with the following offences:
First Count
Statement of Offence
Causing Death by Dangerous Driving. (Section 19A(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Sung-Hung Ko on the 19^th day of August 2014 at Nuriootpa, drove a motor vehicle in a manner which was dangerous to the public and thereby caused the death of Harvinder Kaur.
Second Count
Statement of Offence
Aggravated Driving Without Due Care. (Section 45(1) of the Road Traffic Act 1961).
Particulars of Offence
Sung-Hung Ko on the 19^th day of August 2014 at Nuriootpa, drove a motor vehicle without due care or attention.
It is further alleged that Sung-Hung Ko caused the death of Harvinder Kaur.
Count 2 is an alternative to count 1. The Accused pleaded not guilty to count 1 but guilty to count 2. The Prosecution would not accept the plea of guilty in satisfaction of the Information. Accordingly, count 1 has proceeded to trial.
The Accused elected for a trial by Judge without a jury.
Summary of Facts
The charges arise from a fatal motor vehicle collision which occurred at about 3:15 pm on Tuesday 19 August 2014, on the Sturt Highway, west of Nuriootpa. A Ford sedan, which was being driven by the Accused in a westerly direction towards Adelaide, crossed the double lines and collided ‘head-on’ with an oncoming Mazda sedan driven, by Ms Harvinder Kaur. Ms Kaur died at the scene. Her death was caused by the injuries she sustained in the collision.…

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 Ko

Details

AGLC: R v Ko [2016] SADC 66
Case: [2016] SADC 66
Decision Date: 24 June 2016

CaseChat Overview and Summary

In the case of R v Ko, the accused was charged with causing death by dangerous driving under section 19A(1) of the Criminal Law Consolidation Act 1935 (SA). The incident in question involved the accused driving across continuous double lines on a country highway in contravention of rule 139 of the Australian Road Rules (SA), which resulted in a head-on collision with an oncoming car. Tragically, the driver of the oncoming car was killed. The primary issue before the court was whether the accused's driving constituted dangerous driving, and the court also considered the accused's claims of amnesia and involuntariness.

The legal issues the court had to decide included the definition and application of the term "dangerous driving" as it pertains to the circumstances of the accident, and the extent to which the accused's alleged amnesia and claims of involuntariness could negate or mitigate the charge. The court needed to evaluate whether the accused's actions, despite his claims of memory loss, demonstrated a disregard for the safety of others on the road, which is essential to establish dangerous driving under the statute. Furthermore, the court examined whether the accused's driving, even if involuntary, could still be considered dangerous within the legal framework.

The court found that the accused's driving was indeed dangerous, as it involved a significant breach of traffic rules that directly led to the death of another road user. The court gave little weight to the accused's claims of amnesia, ruling that the accused's conduct, regardless of his memory of the events, demonstrated a clear disregard for road safety. The court concluded that the accused's actions were not merely involuntary but were indicative of dangerous driving. The court held the accused responsible for the death caused by his dangerous driving, rejecting his defence of involuntariness.

The court ordered the accused be found guilty of causing death by dangerous driving and directed that appropriate sentencing considerations be made. The specific sentence was not detailed in the text, but it was clear that the court found the accused guilty based on the evidence of dangerous driving and the resulting fatal collision.

Orders