R v Menegon

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MENEGON
[2017] SASCFC 91
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Nicholson)
2 August 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
EVIDENCE - ADMISSIBILITY AND RELEVANCY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - CAUSATION
On 23 August 2014, the appellant swerved his motor vehicle onto the incorrect side of the road and drove it in the direction of a group of persons. He collided with one of the group causing serious injury.
On 31 January 2017, following a trial by jury in the District Court, the appellant was convicted of the offences of causing harm by dangerous driving, endangering life and leaving an accident scene after causing physical harm by careless driving. With respect to the offence of causing harm by dangerous driving, it was further alleged (relevant to penalty) that serious harm had been caused to the victim and that particular was found proved.
A fundamental issue at trial was whether or not the act of driving in the direction of the group of persons was intentional.
On appeal the appellant contended that the Judge erred in admitting irrelevant evidence and in his directions with respect to that evidence.
Held (Nicholson J with Peek and Stanley JJ agreeing): granting permission to appeal but dismissing the appeal.
1. The evidence in question was relevant and admissible.
2. The trial Judge did not err in his directions.
Criminal Law Consolidation Act 1935 s 19A, s 19AB, s 29, referred to.
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29, (2000) 49 NSWLR 262; Perara-Cathcart v The Queen [2017] HCA 9, considered.

R v MENEGON
[2017] SASCFC 91
Court of Criminal Appeal: Peek, Stanley and Nicholson JJ
PEEK J.

I would grant permission to appeal on ground 2 of appeal but would dismiss the appeal. I agree with the reasons of Nicholson J.
STANLEY J.
I would grant permission to appeal on ground 2 but dismiss the appeal. I agree with the reasons of Nicholson J.
NICHOLSON J.
Introduction
On 23 August 2014, the appellant,[1] Jordan Menegon, swerved his motor vehicle onto the incorrect side of the road and drove it in the direction of a group of persons. He collided with one of the group causing serious injury.
[1] On 18 April 2017, a judge of this Court granted permission, insofar as may have been necessary, to appeal on the only ground then relied on. At the hearing of the appeal the appellant proposed a second ground for which permission is required.
On 31 January 2017, following a trial by jury in the District Court, the appellant was convicted of the offences of causing harm by dangerous driving,[2] endangering life[3] and leaving an accident scene after causing physical harm by careless driving.[4] With respect to the offence of causing harm by dangerous driving, it was further alleged (relevant to penalty[5]) that serious harm had been caused to the victim and that particular was found proved.
[2] Contrary to section 19A(3) of the Criminal Law Consolidation Act 1935.
[3] Contrary to section 29(1) of the Criminal Law Consolidation Act 1935.
[4] Contrary to section 19AB(2) of the Criminal Law Consolidation Act 1935.
[5] See paragraph (a) under the heading ‘Maximum Penalty’ in section 19A(3).
A fundamental issue at trial was whether or not the act of driving in the direction of the group of persons was intentional. The appellant relies on the following two grounds of appeal.
1.The learned trial judge erred in admitting inadmissible evidence at the trial occasioning a miscarriage of justice.
2.The learned trial judge erred in failing to adequately direct the jury in relation to the evidence relating to the appellant’s brother thereby occasioning a miscarriage of justice.
The evidence, the subject of the complaint in ground 2, is the same evidence complained about in ground 1. The evidence was that of witnesses who said that they heard certain words uttered by the appellant’s brother (Ethan Menegon) prior to the incident in question. In short, the appellant contends that this evidence should not have been allowed to go before the jury and, in addition or in the alternative, that the Judge’s directions with respect to that evidence occasioned a miscarriage of justice. The evidence in question was relied on by the prosecution as probative of the appellant’s state of mind at the time he engaged in the driving of his motor vehicle which formed the gravamen of the causing harm and endangering life offences. The appeal is also against the conviction for the leaving the scene of an accident offence. However, it is difficult to see how the admission, wrongful or otherwise, of the evidence in question would bear on the safety of that conviction.
In any event, and for the reasons that follow, neither ground of appeal has been established. Permission on ground 1 having already been granted, I would grant permission to appeal on ground 2 but dismiss the appeal.
Evidentiary background to the offending
On the night in question, a 15 year old girl, Thea Kok, hosted a party at her suburban house. The guests were, essentially, her school friends. Thea’s parents, Justin and Joanne Kok, were present for most of the night. Joanne Kok is the complainant with respect to the cause harm by dangerous driving charge. Most of the guests were in year 10 and, it can be inferred, were aged about 15 or 16 years old. At some stage during the evening, Ethan Menegon, the boyfriend of one of the female guests, attended. He was known to a number of the guests although he did not attend the same school as the host and her friends. Alcohol was consumed by people at the party including a number of the teenage guests.
There came a time during the evening when Ethan appeared to become angry and was observed to be acting aggressively. He was asked to leave by Mr and Mrs Kok. He left and waited outside at the front of the house. Whilst he was outside, some of the other guests interacted with him and he was heard to make comments indicating that he was still angry. The statements he made in this respect were admitted into evidence and are the subject of the appeal.
It was common ground at the trial that Ethan used his phone to contact his older brother, the appellant, at some point after he had been asked to leave the party. The appellant, in his record of interview with the police, admitted that Ethan had contacted him by text message asking him to come and pick him up. There was also evidence consistent with Ethan having contacted the appellant after the initial altercation concerning Ethan. One partygoer saw him texting on his phone. A little later, the appellant arrived at the party having driven there in the company of two other men. It was part of the prosecution case that it was to be inferred that the nature of the contact between Ethan and his brother was such as to cause the appellant to attend the party; he had no other reason to do so.
Apart from the appellant’s statement to the police in his record of interview, there was no other direct evidence of the content of the communication that must have taken place between Ethan and the appellant. It was the prosecution case that the likely content or ‘flavour’ of the communication could be inferred from other surrounding facts including, in particular, the attitude and behaviour of Ethan around the time he contacted the appellant.
Whilst Ethan was still waiting outside the house, the appellant arrived in a motor vehicle which he parked in the street a few houses away. He and his two companions joined Ethan somewhere on the street and the group of now four approached the house and engaged with some of the partygoers. On the prosecution case, the evidence of various witnesses gave rise to an inference that the appellant’s group engaged in behaviour in maintenance of Ethan’s earlier dispute with other partygoers.
The group first confronted Georgia Brett and her boyfriend, Connor Little, in the front yard. According to the evidence, Connor Little was on good terms with Ethan. One of the group was initially aggressive to Connor Little and asked, to the effect, ‘Is this the one?’. Ethan replied to the effect that he was not and Connor Little was then left alone.
The group was then observed to approach the house and engage with some of the other partygoers. A large group of partygoers responded by coming towards and confronting the four members of the appellant’s group. This group consisted mainly of young people but also included Mr and Mrs Kok. A verbal altercation took place and the appellant’s group was told to leave. However, a brief physical fight erupted. Not surprisingly, the accounts of the various eyewitnesses in this respect varied as to detail.
The prosecution submitted that an inference was available on all of the evidence to the effect that both Ethan and the appellant were angry and aggressive. It was the prosecution contention that the appellant’s group was forced to withdraw to their car as a result of being significantly outnumbered. The prosecution submitted that this forced retreat motivated the appellant to engage in a final act of violence with his vehicle as he was leaving the area.
It was the defence contention at trial that the group of partygoers pursued and attacked the appellant’s group and their vehicle as the appellant’s group was leaving. The prosecution submitted that the eyewitness evidence did not support this analysis, although there was evidence to the effect that:
(i)some of the partygoers hindered the appellant from getting into his car; and
(ii)one of the partygoers threw a bottle at the car before the car performed a U-turn and headed in the direction of the group of partygoers.
On the Crown case, the evidence from all eyewitnesses was to the effect that, at least whilst and after the appellant made a U-turn so as to drive in the direction of the partygoers, there were no acts of aggression from any partygoers towards the vehicle. A number of partygoers said they heard the appellant yell out words to the effect ‘remember me cunts, Jordan Menegon’ at the time the appellant got into his car. However, one witness said that these words were uttered after the collision with Joanne Kok.
Thirteen witnesses[6] gave direct evidence about the nature of the appellant’s driving from the time he returned to his car until the collision with Joanne Kok and the appellant driving off. The tenor of the evidence of all thirteen witnesses and the ultimate submission by the prosecution was to the effect that the appellant performed a U-turn and drove in the direction of the group of partygoers, that the car swerved onto the wrong side of the road and proceeded directly towards Mrs Kok and the group of people in her vicinity.
[6] Twelve guests and a neighbour who watched the incident from across the road.
The evidence supported a finding that the appellant’s car struck Mrs Kok while she was near the kerb and whilst the car was on the wrong side of the road. The witnesses called on behalf of the prosecution did not support the defence contentions that the appellant’s manner of driving resulted from his reacting defensively to the car being attacked by projectiles or that Mrs Kok attacked the car in any way or that Mrs Kok moved onto the roadway into the path of the escaping vehicle.
In addition to the appellant’s record of interview with the police, put before the jury as part of the prosecution case, the defence relied on the evidence of a vehicle accident reconstruction expert. The appellant did not give evidence.
The essence of the prosecution and defence cases
Both count 1 (causing harm by dangerous driving) and count 2 (endangering life) together with statutory alternative offences were left to the jury. The appellant was convicted of the two offences as charged and the alternatives can be ignored for present purposes.
Count 1 required a finding by the jury that the appellant committed an act of driving objectively characterised as ‘dangerous driving’, that is, that he drove in a manner, objectively considered to be, dangerous to the public. Count 2 required a finding that the appellant committed an act which, objectively considered, was likely to endanger life.
For each count, the prosecution relied on the jury being satisfied as to the same act of driving namely, the swerving onto the wrong side of the road and driving directly at the group of partygoers, including Mrs Kok. However, an essential element of each offence is that this act of driving must have been intentional, that is, a conscious and deliberate act rather than an accidental or unavoidable act.
The prosecution case was that the act of swerving and driving directly at the group of partygoers was deliberate, if only for the purpose of scaring or intimidating them. However, the defence case was that it was at least a reasonable possibility that the appellant lost control of his vehicle when endeavouring to take defensive action as a result of projectiles, including bottles, being thrown at the car as he was attempting to drive away from the scene.
For the prosecution to succeed, given the manner by which it had presented its case, the jury had to be satisfied beyond reasonable doubt that the appellant intentionally drove in the impugned manner. As such, the appellant’s state of mind at or immediately prior to the time of the act of driving in question was a fact in issue to be determined by the jury on a circumstantial evidence basis.
The impugned evidence
The evidence objected to by the appellant at trial (that in bold below) and the context in which it was given is as follows.
Witness Georgina Brett
Q      What did you first see or first hear to alert you that Ethan was there.
A      I heard noises coming from the bushes across the road.
Q      What noises did you hear.
A      Just talking.
Q      How many people.
A      One.
Q      Did you see Ethan at some stage.
A      Yes, he came out of the bushes.
Q      Did you talk to him or did he talk to you.
A      I spoke to him.
Q      Was he alone at that stage.
A      Yes.
Q      What did he say or what did you say to him.
A      I asked him what was going on and he said that there was going to be a fight.
Q      At that time could you see any other people around.
A      No
Witness Thomas Heal
Q      Did you then go out the front.
A      Yes.
Q      Was he there.
A      Yes.
Q      Was he alone.
A      No, he was surrounded by Bradie Lach and Jordan McLean and one other person, that I'm not sure of the name.
Q      Did you see any conversation or interaction between those boys and Ethan.
A      Yes, they were telling him that his brother won't be there to back him up all the time.
Q      Did those boys appear to be getting along well with Ethan or was there something going on with them.
A      Yes, there was something going on, yeah.
Witness Bradie Lach
Q       Who was there.
A      Andrew, Ethan and Jordan at the time. The mum - Jordan McLean and Andrew and Ethan.
Q      You said the mum, but you didn't think the mum was there at first.
A      No, I don't think the mum was there.
Q      Jordan was a friend, Jordan McLean.
A      Yes.
Q      Where was Ethan at that time.
A      Sat on the kerb.
Q      Did you speak to him at all then.
A      Yes.
Q      Were the other boys speaking to him.
A      Yes.
Q      What was the mood like between all of you then.
A      Just sort of a bit of a laugh, sort of over exaggerated. Ethan seemed to be getting angry and anxious saying, you know, 'Watch out, my brother is going to be here soon', along the lines of that, 'Watch out'.
Witness Andrew Gallagher
Q      At any stage after Ethan left, did you go out the front of the house.
A      Yes, I left to go and get cigarettes from the service station.
Q      Did you see Ethan out the front at all.
A      Yes, he was - sat across the road on the kerb.
Q      What was he doing.
A      He was sat on his phone, his mobile phone and said to me as I walked past 'just wait half an hour'.
Q      Did you go off to get cigarettes.
A      Yes.
Q      How long were you gone for.
A      Approximately 10 minutes at the most.
Q      When you came back was he still there.
A      Yes.
The admissibility of the impugned statements (ground 1)
Ground 1 of the notice of appeal, in the form it was in at the time permission to appeal was granted, complained that the evidence in dispute was inadmissible hearsay. The original form of the ground was as follows.
The learned trial Judge erred in admitting inadmissible hearsay evidence at the trial occasioning a miscarriage of justice.
[emphasis added]
However, the appellant’s proposed substituted grounds of appeal, provided at the hearing of the appeal, included not just ground 2 (for the first time) but an amended ground 1 with the word ‘hearsay’ deleted. The appellant conceded that the impugned statements made by Ethan Menegon were not hearsay if used for a non-testimonial purpose and, subject to relevance, were probative of Ethan’s state of mind.
The appellant’s case at trial and on appeal was and is that, whilst the impugned statements could assist in proving the state of mind of Ethan, they were not probative of and, as a consequence were irrelevant to, the state of mind of the appellant. Accordingly, the impugned statements made by Ethan were inadmissible.
It was contended that there is a lacuna in the evidence. There is no evidence of anyone overhearing a telephone conversation between Ethan and the appellant, nor was there any direct evidence regarding the content of any text message or other electronic communication. Counsel for the appellant submitted that, in the absence of evidence of the manner and content of any communication between Ethan and his brother, the evidence of what Ethan was heard to say and therefore, by inference, his state of mind, could not assist the jury in its quest to determine the state of mind of the appellant. In these circumstances, to admit the evidence of what Ethan said would promote only speculation as to the appellant’s state of mind as opposed to the legitimate drawing of an inference. In this respect, the appellant relied upon the observations of Spigelman CJ in Seltsam Pty Ltd v McGuiness.[7]
[7] [2000] NSWCA 29; (2000) 49 NSWLR 262 at [84]-[88].
It is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists.
Lord Macmillan in ... in the context of stating that a possibility that a negligent act caused injury was not enough, said ...
“The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.”
After referring to this passage, Sir Frederick Jordan in ... said:
“The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible.”
As Lord Wright put it in a frequently cited passage in ...
“Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some case the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”
The test is whether, on the basis of the primary facts, it is reasonable to draw the inference ... .
[citations omitted]

Counsel for the appellant conceded that the prosecution had adduced circumstantial evidence sufficient to permit a submission concerning the appellant’s state of mind, apart from the evidence of Ethan’s state of mind and any weight that might be given to that evidence in this respect. Counsel’s complaint, in essence, was that there had been a miscarriage of justice because the additional evidence (as to Ethan’s state of mind) wrongly admitted on the question of the appellant’s state of mind made the case before the jury in this respect stronger than it should have been.
The prosecution argument in support of the admissibility of the statements made by Ethan when he was outside the house and prior to the appellant arriving had two components or stages to it.
First, the statements, together with the evidence of Ethan’s conduct and the conduct of the appellant when he arrived, were available not for the purpose of drawing an inference, that is an implied assertion, as to anything the appellant might have said to Ethan, but as evidence from which an inference might be drawn as to that which Ethan had communicated to the appellant. Second, any such inference that might be drawn was itself evidence from which an inference might be drawn as to what the appellant knew before he arrived, that is, the appellant’s state of mind at the time of and following his arrival.
At no point did the prosecution rely on the impugned evidence as probative of that which the appellant might have said or communicated to Ethan and, through this route, as probative of the appellant’s state of mind. As this was not relied on by the prosecution and the directions given by the trial Judge did not permit any such use to be relied upon by the jury (see further below) it is not necessary to consider whether or not the evidence of the statements made by Ethan would have been admissible as proof, by inference, of that which the appellant may have communicated to Ethan.
The impugned statements by Ethan, uttered after he had communicated with the appellant, constituted strands of circumstantial evidence relevant to Ethan’s state of mind at the time he communicated with his brother. These strands are to be considered in conjunction with other evidence, including to the effect that Ethan had been angry and aggressive immediately prior to the time he contacted the appellant. The appellant does not challenge the proposition that the impugned evidence was probative of Ethan’s state of mind, only that Ethan’s state of mind was not relevant to any fact in issue.
However, Ethan’s state of mind at the time he communicated with the appellant was probative of the appellant’s state of mind in that, as a matter of logic and common sense, Ethan may have explained to the appellant what had happened such that he needed to be collected from the party. There is no way of knowing precisely what was communicated but an inference was open as to the tenor or flavour of this communication as a result of Ethan’s state of mind.
As the prosecutor submitted, any such inference becomes stronger or is more soundly based when the conduct of the appellant and his group on arrival is considered. It is an unusual thing for someone who arrives to collect a family member from a party to aggressively approach other guests and to engage in a physical altercation. Ordinarily, this type of conduct speaks of some history between the parties or some other prior acquired motivation. As is the case with any fact in issue that can only be established on the basis of circumstantial evidence, all of the circumstances must be assessed in combination.
The respondent argued on appeal that an inference as to the appellant’s state of mind was open to the jury on all of the evidence, including that Ethan had communicated with the appellant and the circumstances surrounding and causing that communication, in accordance with the following steps in reasoning.
(i)Ethan communicated with the appellant and did so after being asked to leave.
(ii)That communication caused the appellant to attend.
(iii)Ethan had expressed some grievance to his brother, an inference that was open in light of the descriptions of Ethan’s behaviour and the statements he made after speaking to the appellant.
(iv)The grievance having been brought to his attention, the appellant was motivated to support Ethan’s grievance, an inference open bearing in mind the nature of their relationship, the fact that the appellant did not simply collect Ethan on arrival but exited the car in company with two other occupants and the manner in which the appellant and the other occupants conducted themselves having exited the car.
I accept this submission. Of course, any inference by the jury as to the appellant’s state of mind upon arrival at the party venue is, itself, just one strand of circumstantial evidence available to the jury and to be considered in combination with all of the other circumstantial evidence relied on by the prosecution (principally as to the appellant’s conduct) for the purpose of determining whether the prosecution had proved beyond reasonable doubt that the appellant’s driving was intentional rather than accidental.
Ground 2 – the Judge’s directions
The manner by which the jury was entitled to use the evidence concerning the statements by Ethan in question was explained both in the prosecution closing address and by the Judge.
The prosecutor’s address included the following.
When considering the ultimate question about how the accused decided to drive the car during and after, it will be important to consider his state of mind. You can infer things about his state of mind, of course, from his actions; for example, what had just happened out on the street with the altercation. One part of that is going back to why he came to the party in the first place? Did he arrive at the party to do no wrong or did he arrive there already not happy about the way his brother had been treated, thinking he might do something about it?
To work that out, one part of that at least, we need to think about what Ethan told him during the phone communication which we know there was and when they met up in person in the street when the car arrived. We don't have precise information about what was said but what do you think was likely to have been said between the two brothers? We might think we can work that out approximately, when we consider Ethan's state of mind and that's when it was relevant. He was angry enough to wield a bottle. As I said, angry enough to threaten people about what was going to happen once his brother arrived. When that was in his mind you might think it's clear that he has passed some of that on to his brother. You might think that communication then explains why those young men in the accused's group didn't simply pick Ethan up, as they should have, but instead they got out of that car, they came down to the party when there was no other good reason to do so. It's the only explanation for why they behaved why they did once they arrived and those aggressive comments as soon as they arrived. The only explanation is they went there to sort out Ethan's grievance from earlier on.
[Emphasis added]
The Judge, in his summing up, dealt with the matter in the following way.
You have heard some evidence regarding the accused’s brother, Ethan. There is evidence that he was angry at the party, asked to leave and was still angry outside the party; evidence that he used his phone to contact his brother the accused; evidence that he said some things along the lines of ‘Wait until my brother turns up’; and there is his behaviour and evidence of something said when his brother first turned up.
That evidence is before you for a limited purpose. Ethan is not on trial here and most of the things I have just been through happened before the accused even turned up at the scene. That evidence is available to be used for the limited purpose of informing you about the accused’s state of mind, not directly Ethan’s state of mind, just indirectly. What I mean by that is that you may use that evidence that I have just talked about if you choose to. You don’t have to but you may use that evidence to draw an inference as to the flavour of the communications that Ethan must have made to his brother, the accused, either by telephone conversation, text or conversation when he got there or all of the above.
Of course, you will never know precisely what he said to the brother. But the evidence is there to inform you about the types of communication and the flavour of them that you can infer were made and therefore you can infer about the accused’s state of mind. That is the limited use for which that evidence can be put.
[Emphasis added]
It is readily apparent that the passage just quoted from the summing up contains a typographical error. This was raised during the hearing and neither party strongly demurred. The recorded reference to ‘Ethan’s state of mind’ in the second sentence of the first emboldened passage should be a reference to the appellant’s, not Ethan’s, state of mind. The sentence only makes sense if read in this way. Indeed, when the directions were given orally, it must have been the case that the Judge referred to ‘his’ not ‘Ethan’s’. One can understand how the word ‘his’ might have been misheard as ‘Ethan’s’ when the dictation was taken down by the court reporter. The sentence makes no sense in its recorded form but makes perfect sense if, in fact, the jury heard it as:
That evidence is available to be used for the limited purpose of informing you about the accused’s state of mind, not directly his state of mind, just indirectly.
The appellant has submitted that the Judge’s directions on the topic failed to identify how the evidence could be ‘permissibly’ used by the jury. I disagree. The evidence had a relevance. Depending upon what inferences the jury were prepared to draw and what weight it was prepared to give any such inferences, it was probative of the appellant’s state of mind at the material time. It was this purpose that the Judge explained to the jury in the directions set out above. The purpose was described as a ‘limited purpose’. That limited purpose was described as rendering available an inference about ‘what he [Ethan] said to the brother [the appellant]’, that is, ‘the types of communication and the flavour of them’, from which an inference might be available as to the appellant’s state of mind.
The question before the jury was only one of relevance. It was the Judge’s duty to explain only so much of the law as was necessary bearing in mind the issue in question.[8] It was not necessary to discuss, for example, inadmissible hearsay purposes and admissible non-hearsay purposes or various irrelevant use possibilities which had not been raised. It was the Judge’s duty to explain to the jury the limited relevance of the evidence in question. It was plain to the jury following the prosecution address and the Judge’s directions that the evidence had no other purpose. I am satisfied that there was no appreciable risk that the jury would use this evidence in any way other than in the limited way pressed by the prosecution and directed by the Judge.
[8] Perara-Cathcart v The Queen [2017] HCA 9 at [66] (Kiefel, Bell and Keane JJ).
Conclusion
I am satisfied that there was no risk of a miscarriage of justice as a consequence of either the admission of the evidence in question or the manner by which the jury were directed as to its use. The question of whether or not the appellant’s conduct was intentional was squarely before, and the central issue before, the jury. On my review of the evidence and the summing up bearing on this issue, I see no risk that the jury approached its task in an inappropriate manner.
I would grant permission to appeal on ground 2 but dismiss the appeal.

[2017] SASCFC 91

2 August 2017

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Causation

Intention