R v MICHELS - [2006] SASC 226

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MICHELS
[2006] SASC 226
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Vanstone and The Honourable Justice White)
3 August 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
Appeal against conviction - appellant convicted of four counts of causing bodily harm by dangerous driving contrary to s 19A(3) of the Criminal Law Consolidation Act - all four counts arose from a single collision between the appellant's vehicle and another vehicle at an intersection of country roads - prosecution case that the dangerous driving lay in appellant's failure to "register" advisory road signs and the presence of the other vehicle - whether the evidence excluded as a reasonable possibility momentary inattention or mere misjudgment by the appellant in crossing the intersection - whether evidence proved any more than driving without due care and attention.
Held: sufficient evidence for the jury to conclude beyond reasonable doubt that the appellant's conduct constituted dangerous driving within the meaning of s 19A - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA), s 19A, referred to.
Bliss v The Queen (1993) 173 LSJS 255, distinguished.
Kroon v The Queen (1991) 55 SASR 476; R v Mayne (1975) 11 SASR 583; Morris v The Queen (1987) 163 CLR 454, considered.

R v MICHELS
[2006] SASC 226
Court of Criminal Appeal: Perry, Vanstone and White JJ

PERRY J. In my view, the appeal should be dismissed. I agree with the reasons of White J.
VANSTONE J: In my opinion this appeal should be dismissed.
I have had the advantage of reading the reasons for decision of White J. I agree in general terms with them.
In particular I consider that it was open to the jury to be satisfied that when the appellant entered the intersection, at a time and in a manner which would inevitably compromise the safe passage of Mr Brooks’ vehicle, having either not taken in or not appropriately responded to the ample road warning signs alongside and in her path, she was driving dangerously.
WHITE J: On 7 March 2004 a collision occurred near Port Vincent on the Yorke Peninsula at the intersection of the Main Coast Road with the Port Vincent-Minlaton Road. The appellant was driving a white sedan, with two passengers, in a westerly direction on the Port Vincent-Minlaton Road. Her car collided with a yellow utility driven by one Brooks in a northerly direction along the Main Coast Road. The two passengers in the appellant’s vehicle and the two passengers in Mr Brooks’ vehicle were injured.
The appellant was charged with four counts of causing bodily harm by dangerous driving contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (“CLCA”), each count relating to one of the injured passengers.
By majority verdicts a jury found the appellant guilty of each of those four charges. The appellant appeals against those convictions.
There are two grounds of appeal. The first is that the trial judge erred in failing, at the close of the prosecution case, to direct the jury to acquit the appellant on all four counts. The submission is that the trial judge should have upheld a submission of no case to answer. The second ground of appeal is that the verdict of the jury was unreasonable and against the weight of the evidence. This ground was particularised in the following manner:
(a)     the prosecution allegations that the appellant “did not register” advisory signs on her direction of travel could not be sustained on the evidence;
(b)    the prosecution could not point to any aggravating feature other than prolonged inadvertence and that could not be sustained by the evidence;
(c)    the prosecution case could not exclude as a reasonable possibility a mere misjudgment by the appellant in trying to negotiate the intersection safely;
(d)    the prosecution case could prove no more than careless driving.
On the hearing of the appeal, Ms Nelson QC, who appeared with Mr White for the appellant, addressed her submissions to the second ground of appeal. Ms Nelson accepted that if the appellant did not succeed on the second ground, then she would not succeed on the first. Mr Kimber, for the respondent, also addressed his submissions to the second ground. Accordingly, I propose in these reasons to address the second ground of appeal only.
Circumstances of the Collision
The collision occurred at about 10.45 am on a Sunday morning. The weather was fine, visibility good and the bitumen roads straight and dry. The Main Coast Road is the major north-south highway on the eastern side of Yorke Peninsula. It comprises two lanes: one each for northbound and southbound traffic. The applicable speed limit is 110 kph.
The Port Vincent-Minlaton Road also comprises two lanes: one for eastbound and one for westbound traffic. The applicable speed limit for this road is also 110 kph. Photographs and a plan showing the various features of the intersection were tendered and available to the jury.
At the time of the collision, vehicles travelling on the Port Vincent-Minlaton Road were required to give way to vehicles travelling on the Main Coast Road. The intersection was clearly marked for traffic travelling in the direction of the appellant. At a point 143 metres east of the intersection, give-way advisory signs were positioned on either side of the Port Vincent-Minlaton Road. The give-way advisory signs comprised an inverted red and white triangle on a yellow background. The effect of the give-way advisory signs was to alert road users to the presence of give-way signs further ahead. A large highway advisory sign was positioned on the southern side of the Port Vincent-Minlaton Road a further 10 metres east of the give-way advisory signs. This was green with white and yellow lettering. It indicated Ardrossan to the north, Stansbury to the south, and Minlaton straight ahead. Approximately 50 metres further to the east was a “Reduce Speed” sign made up of white lettering on a red background. The give-way signs themselves were positioned 18 metres east of the intersection on each side of the Port Vincent-Minlaton Road. In addition, in the vicinity of the intersection, the eastbound and westbound lanes of traffic on the Port Vincent-Minlaton Road were separated by a rumble strip and the boundary of the intersection on its eastern side was marked by a white painted broken fog line.
Although the area surrounding the intersection is flat, there were some trees and undergrowth which obscured the line of vision of vehicles approaching the intersection from some directions. However, a police officer gave evidence (which was not challenged) that when a vehicle travelling in an easterly direction on the Port Vincent-Minlaton Road (the appellant’s direction of travel) reached a point 100 metres east of the intersection the driver of that vehicle had an unobstructed view of vehicles travelling north on the Main Coast Road (the direction of travel of Mr Brooks’ vehicle) from the point when they were 179 metres south of the intersection.
The impact occurred when the appellant’s vehicle was substantially through the intersection and on that part of the carriageway of the Main Coast Road for northbound traffic. There was no evidence of any evasive action taken by the appellant before impact.
The Prosecution Case
In opening, the prosecutor said to the jury:
It’s the prosecution’s contention, ladies and gentlemen, that the concentration the accused brought to bear on the task of driving prior to the collision was so defective she did not register the warning signs for the give-way sign 125 or so metres from the intersection, she did not register the green and white road sign, she did not register the give-way signs themselves and that that lack of concentration subsisted over a considerable length of road, a minimum, on the prosecution case, of 125 metres. She also, ladies and gentlemen, on the prosecution case, did not register the presence of Mr Brooks’ vehicle.
In short, the prosecution’s case was that the manner of driving of the appellant should be characterised as dangerous, rather than without due care, because of a failure of the appellant to “register” the road side warning signs and her failure to “register” the presence of Mr Brooks’ vehicle.
This way in which the prosecution presented its case carried through the trial. The judge directed the jury that it had to be satisfied beyond reasonable doubt of the facts alleged by the prosecution in the opening. The trial judge said:
In this case, the prosecution must prove, beyond reasonable doubt, that the accused did not simply fail to give way and did not simply have a momentary lapse in attention. For the offence to be established, you must be satisfied, beyond reasonable doubt that, and I am quoting now from what the prosecution case is, the concentration the accused brought to bear on the task of driving, prior to the collision, was so defective that she didn’t register the warning signs – that is the warning signs from about 125 metres or so from the give-way signs – she didn’t register the road sign, she didn’t register the give-way signs themselves and did not register the presence of Mr Brooks’ car, but, instead, she went into the intersection at 53 km/h.
It is not necessary on this appeal to consider whether a direction in those terms was required.
The evidence of Mr Brooks was that he was travelling at 110 kph. As is often the case with evidence about distances, his estimate of the distance which he was from the intersection when he first saw the appellant’s vehicle (“100 metres, maybe”) may have been unreliable. He saw the appellant’s vehicle approaching the intersection and thought she was travelling “fast”. When he realised that the appellant was not giving way to him, he took evasive action by braking sharply. His vehicle left a skid mark 33 metres in length prior to the point of impact. Ms Nelson QC was critical of the reliability of the evidence of Mr Brooks concerning his speed, the distance of his vehicle from the intersection when he first saw the appellant’s vehicle, and the position that the appellant’s vehicle was in at that time. In the view I take of the case, it is not necessary to consider those criticisms.
A passenger, Ms Cavuoto, in Mr Brooks’ vehicle said that they were travelling at 110 kph. She said that she saw the appellant’s vehicle when Mr Brooks’ vehicle was approximately 100 metres from the intersection. She thought that the appellant’s vehicle was then travelling at approximately 100 kph and that it did not change speed prior to the impact. However, in cross-examination Ms Cavuoto admitted that she did not have sufficient time in which to form an estimate of the speed of the appellant’s vehicle.
The second passenger in Mr Brooks’ vehicle was lying in the tray of the utility. He did not see any of the events before the collision.
There were two witnesses (Mr and Mrs Edwards) parked in a car facing north on the western verge of the Main Coast Road and to the north of the intersection. Each saw glimpses of what occurred before impact and each saw the impact itself. Mr Edwards could not estimate the speed of Mr Brooks’ vehicle and “roughly estimated” the appellant’s speed to be 60-80 kph. Mrs Edwards estimated the appellant’s speed to have been 50-60 kph and said that Mr Brooks’ vehicle was travelling much faster than that.
Mr and Mrs Natt were travelling north on the Main Coast Road and approximately 200 metres behind Mr Brooks’ vehicle. They had been overtaken by Mr Brooks approximately one or two kilometres earlier. Mr Natt estimated Mr Brooks’ speed at that time to be 110 kph. He saw the appellant’s vehicle only briefly and estimated her speed to be 40 kph. Mrs Natt did not see the collision but estimated the speed of Mr Brooks’ vehicle when it overtook them to be 100-110 kph.
There were two witnesses who were travelling south on the Main Coast Road who saw the collision. One, Ms Natt, said that she first saw the appellant’s vehicle when it was approximately 100 metres from the intersection and thought its speed at that time was about 100 kph. Her view of the appellant’s vehicle was then obstructed by a line of trees but when she saw the appellant’s vehicle again it seemed to her to be travelling at a constant speed which she estimated to be approximately 80-100 kph. The driver of Ms Natt’s vehicle, Ms Gillies, said that when she first saw the appellant’s vehicle it (the appellant’s vehicle) was travelling at a speed of about 90 kph. She did not notice it again until the moment when the collision occurred. Neither of these witnesses saw Mr Brooks’ vehicle before the collision occurred.
The two passengers in the appellant’s vehicle gave evidence but had no effective memory of the events leading to the collision. This seemed to be a consequence of the injuries which they sustained in the collision.
The appellant did not give evidence at her trial.
The prosecution led evidence from Snr Sgt England who is a member of the Major Crash Investigation Unit of the South Australian Police. No objection was taken to him giving evidence as an expert in accident reconstruction. He had attended at the accident scene on the day after it occurred, had made observations of the markings on the road and surrounding areas, had been provided with information by the police officers who had attended the previous day and had made a number of measurements. He had also inspected both the vehicles involved in the collision. He gave evidence, based on a reconstruction, of his estimate of the speed at which the two vehicles were travelling at the time of impact, and in the case of Mr Brooks’ utility at the commencement of braking as indicated by the skid marks. That evidence was not challenged by the appellant at the trial. On the contrary, the appellant relied very much upon Sgt England’s evidence. The jury was invited to reach the verdicts by relying on Sgt England’s evidence.
Sgt England calculated that the speed of Mr Brooks’ vehicle at the point of impact was between 91-100 kph. After making allowance for the effect of braking as evidenced by the skid marks, he estimated that the pre-braking speed of Mr Brooks’ vehicle was between 115 and 125 kph. He indicated that these estimates should be increased by 6 kph if, as seemed likely, the front right wheel of Mr Brooks’ utility had been locked, rather than rotating, after impact.
Sgt England estimated that the speed of the appellant’s vehicle to have been in the range of 53-58 kph at the time of impact.
Sgt England also gave evidence of calculations he had made as to the time it would take a vehicle, travelling at different speeds, to travel the distances of 100 metres and 179 metres respectively.
Legal Principles
The law with respect to driving “in a manner dangerous” is well established. The standard is objective. Driving may be characterised as dangerous even though it was not intended to be such and even though the driver did not appreciate the danger. In Kroon v The Queen[1] King CJ said:
It is well established that the question whether a vehicle is driven in a manner dangerous to the public for the purpose of the offences created by s 19a of the Criminal Law Consolidation Act 1935 must be answered by a reference to an objective standard and irrespective of whether the accused intended to drive dangerously or appreciated that he was doing so … The character of the driving is tested not by reference to whether the danger to the public involved in the driving was appreciated by the accused but to whether he ought to have appreciated the danger; or, to put it another way, whether a reasonable person in the situation of the accused would have appreciated the danger … .[2]
[1] (1991) 55 SASR 476.
[2] Ibid at 477-8.
The law recognises that there may be driving which, although careless or negligent, falls short of being characterised as dangerous. Mere inadvertence or negligence does not comprise the driving of a vehicle in a manner dangerous. In R v Mayne[3] Bray CJ said in relation to an analogous provision:
By empowering the jury to acquit of causing death by dangerous driving and to convict of driving without due care or attention, [Parliament] must have contemplated that not all departures from due care and attention, even if they cause death, are necessarily to be classified as dangerous within the meaning of s 14.[4]
[3] (1975) 11 SASR 583.
[4] Ibid at 585.
The principles upon which an appellate court acts in determining whether a jury verdict should be set aside on the grounds that it is unreasonable or against the weight of the evidence are also well established. The court undertakes its own independent examination of the evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused.[5] The function is not discharged merely by consideration of whether there was sufficiency of evidence to sustain a conviction as it is clear that a verdict may be unsafe or unsatisfactory notwithstanding that there was evidence sufficient to entitle a reasonable jury to convict.[6]
[5] Morris v The Queen (1987) 163 CLR 454 at 473 per Deane, Toohey and Gaudron JJ.
[6] Ibid.
Registering the Signs
If the verdicts rested solely on the allegation that the appellant had failed to “register” the warning signs, I would have had considerable doubt about the reasonableness of the verdicts. There was no direct evidence that the appellant had not “registered” the signs. At best, a conclusion to that effect was a matter of inference. I doubt that it could be concluded from the evidence adduced by the prosecution that the only reasonable inference open was that the appellant had not “registered” the warning signs.
There was evidence that the highway warning sign first became visible to drivers travelling in the appellant’s direction of travel when they were some 600 metres from the intersection. As the highway warning sign is a very large sign, the signs were in the appellant’s direct line of vision while she travelled a considerable distance.
The evidence of Sgt England suggested that the speed of the appellant’s vehicle at impact was 53-58 kph which was considerably less than the applicable speed limit. Given that the appellant could not, on Sgt England’s evidence, have accelerated to that speed from a stationary position at the edge of the intersection, the two principal alternative hypotheses were that the plaintiff was travelling at a constant speed of approximately 55 kph and did not slow at all before impact, or that she had been travelling at a higher speed but had slowed at some point prior to entering the intersection. The first alternative, while possible, does not seem plausible. People generally travel at higher speeds than the suburban road limit when on country roads. There was no evidence as to the intended destination of the appellant but it is apparent from the point at which the impact occurred that her vehicle was crossing the Main Coast Road as though to travel in the direction of Minlaton. This suggests that it was unlikely that the appellant was travelling at a constant speed of the order of 55 kph. But if the appellant was travelling at such a constant speed, it seems quite implausible that she could not have “registered” the several warning signs of the intersection as she approached. The photographs show that the signs were, as one would expect, obvious.

The second alternative, namely, that the appellant had slowed at some point prior to entering the intersection, is quite consistent with the appellant having observed the signs and having slowed down accordingly. If the jury accepted that the appellant had slowed to her speed at impact of 53-58 kph, it could not, in my opinion, have excluded beyond reasonable doubt the possibility that that reduction in speed was because the appellant had observed the signs.
As already noted, the jury did have the evidence of Ms Cavuoto and Ms Natt which was to the effect that the appellant’s vehicle had driven at a constant speed prior to the impact. Ms Cavuoto estimated that speed to be 100 kph and Ms Natt estimated that speed to be 80-100 kph. If the jury accepted that evidence in substance, and concluded that the appellant had driven for some distance prior to the intersection and into the intersection itself at a constant speed in the range 80-100 kph, a conclusion that the appellant was driving in a manner dangerous was almost inevitable. But, as already noted, the prosecution case really rested on the evidence of Sgt England. This is reflected in the direction of the trial judge to which I referred earlier to the effect that the jury had to be satisfied beyond reasonable doubt that the appellant entered the intersection at 53 kph. Ms Natt’s evidence was quite inconsistent with the estimate of Sgt England.
For these reasons, as I have said, if the jury verdicts depended solely on the jury being satisfied that the prosecution had proved beyond reasonable doubt that the appellant had not “registered” the warning signs, I would have had concerns about the reasonableness of the verdicts. This requires attention to the second matter upon which the prosecution relied.
Failure to Observe Mr Brooks’ Vehicle
One matter that is plain is that Mr Brooks’ vehicle had traversed the 179 metres of the Main Coast Road before reaching the intersection which was visible to a driver travelling west on the Port Vincent-Minlaton Road for a distance of 100 metres east of the intersection.
Obviously enough, the higher the speed of Mr Brooks’ vehicle as he approached the intersection, the less time in which the appellant had to see him and make a judgment about his approach. Hence the reliance placed by the appellant at trial, and on the appeal, on the estimates of Sgt England as to the speed of Mr Brooks, rather than on the evidence of Mr Brooks, Ms Cavuoto and Mr and Mrs Natt as to that speed. In assessing the reasonableness of the jury verdicts, it is appropriate to view the matter on the basis most favourable to the appellant, ie, the estimates of Sgt England. If the verdicts are reasonable when considered on that basis, a fortori if the jury relied instead on the evidence of the other witnesses as to the speed of Mr Brooks’ utility.
Sgt England gave evidence of the time it would take a vehicle travelling at various speeds to cover various distances. These are, in any event, straightforward arithmetical calculations.
If Mr Brooks had travelled at a constant speed of 125 kph, it would have taken him 5.1 seconds to cover the distance of 179 metres prior to impact. The fact that Mr Brooks braked over the last 33 metres indicates that his speed was not constant, and that the time taken would have been a little more than 5.1 seconds, but for ease of calculation, the effect of the braking can presently be ignored.
Even if Mr Brooks was travelling at the highest speed estimated by Sgt England (131 kph), it would still (ignoring the effects of braking) have taken him 4.9 seconds to travel the 179 metres. Thus, it can be said that if the appellant’s vehicle was within 100 metres of the intersection during the period in which Mr Brooks’ vehicle travelled the 179 metres, she had a period of the order of 5 seconds, and perhaps more, in which Mr Brooks’ vehicle would have been visible to her.
The jury was entitled to conclude that the appellant could, had she been keeping a proper lookout, have seen the appellant for the whole of the distance of 179 metres. This follows from a consideration of the time which it would have taken the appellant to have travelled the distance of 100 metres prior to the impact. If the appellant’s vehicle had been travelling at a constant speed of 55 kph (the mid point of Sgt England’s estimate) prior to impact, then at the moment in time 5 seconds prior to impact, the appellant was 76.5 metres away from the point of impact. If the appellant had been travelling at 100 kph and had slowed at a constant rate of deceleration to a speed of 55 kph at impact, it can be calculated that the appellant was 104 metres from the point of impact when Mr Brooks’ vehicle became visible. In effect therefore, even on that scenario, the appellant should have been able to see Mr Brooks’ vehicle for the whole of the distance of 100 metres which she travelled prior to impact.
In my opinion, these calculations show that it was reasonably open to the jury to conclude that the appellant’s lookout was not only defective, but grossly defective. The period of 5 seconds provided ample opportunity for the appellant to observe the approach of a vehicle from the south to which she was obliged to give way. A failure to see an approaching vehicle over an interval of 5 seconds cannot reasonably be regarded as attributable to a momentary lapse of concentration, or to momentary inattention.
This conclusion applies with even greater force if Mr Brooks’ vehicle had been travelling at the lower end of the range estimated by Sgt England, and with even greater force still if the jury acted on Mr Brooks’ own evidence of his speed.
It is true that if the appellant had been travelling at high speed (say 100 kph) and had braked sharply over a short distance just before impact so as to reduce her speed to about 55 kph, she would not have had the whole of the 5 seconds in which to see Mr Brooks’ vehicle. But there was no evidence to support this hypothesis. On the contrary, the evidence of Ms Cavuoto and Ms Natt was that the speed of the appellant’s vehicle had remained constant.
Ms Nelson QC submitted that even if the jury concluded that the appellant should have seen Mr Brooks’ vehicle, the possibility that she had made a simple error of judgment could not have been excluded as a reasonable hypothesis. It was possible, Ms Nelson QC submitted, that such an error of judgment could be made, especially if Mr Brooks had been travelling at a speed in excess of the speed limit.
In my opinion, it was open to the jury to conclude that the evidence proved beyond reasonable doubt more than a simple error of judgment. The jury would, no doubt, have taken account of the fact that the appellant had to be alert to traffic travelling from the north, as well as from the south, and that the appellant also had to check for any traffic travelling east on the Port Vincent-Minlaton Road. She could not therefore have had Mr Brooks’ vehicle under constant observation. But even so, the jury could reasonably have concluded that in the space of 5 seconds the appellant could have checked the position and speed of Mr Brooks’ vehicle on more than one occasion. Hence, it was open to the jury to have excluded, as a reasonable possibility, the appellant having made a simple error of judgment.
Ms Nelson QC placed considerable reliance on the decision in Bliss v The Queen[7] in which the Court of Criminal Appeal quashed a conviction for the offence of causing bodily harm by dangerous driving. It was submitted that this case was on “all fours” with Bliss.
[7] (1993) 173 LSJS 255.
It is true that there are a number of similarities between this case and Bliss. Both cases involved a collision at an intersection, at right angles, of two country roads on which the applicable speed limit is 110 kph. As in this case, the appellant in Bliss failed to comply with a give-way sign and had collided with a vehicle approaching from her left. The appellant in Bliss did not give evidence at her trial although, unlike this case, she had given a statement to the police which was tendered at the trial. It was accepted in Bliss that, because of the road passing through a cutting and because of vegetation, the appellant could not have seen the other vehicle until it was 80 metres from the intersection, and further, could not have seen anything of that approach until she was within 60 metres of the intersection. It was also accepted in Bliss that the driving of the appellant had not been erratic and that she had slowed her speed before entering the intersection (she was in second gear). Mullighan J, with whom Duggan J agreed, held that in those circumstances the possibility that the appellant was guilty of momentary inattention had not been excluded. The proved conduct was just as consistent with the ordinary negligence or inadvertence which constitutes driving without undue care. Mullighan J said:
… I do not think it is appropriate to characterise the driving of the appellant as in a manner dangerous to the public. She was not driving at an excessive speed, or erratically. She was driving slowly and, up until entering the intersection, apparently entirely within the rules of the road and safety. The only complaint which may be levelled at her is that her lookout was defective, a common complaint about all drivers at some stage of their lives. …
In my view, all that the evidence was capable of establishing is that in entering the intersection when she did the appellant was guilty of negligence or inadvertence such as to constitute driving without due care.[8]
Bollen J, in a separate judgment, gave reasons to similar effect.
[8] Ibid at 263-4.
Bliss illustrates clearly the distinction which is to be drawn between driving in a manner dangerous on the one hand, and driving without due care on the other. It reflects the legislative intention that it is not every case of driving which results in a collision in which someone is injured which is to be characterised as driving in a manner dangerous. But I do not think that this case can be characterised as being on “all fours” with it. The appellant in Bliss had only the time taken by a vehicle travelling at 100 kph to cover 80 metres in which to see it. The possibility of momentary inattention or inadvertence in those circumstances is obvious. But for the reasons already noted, the jury in this case was entitled to consider that the appellant had the opportunity of observing the approach of Mr Brooks’ vehicle over a distance of 179 metres, and while she herself travelled a longer distance than had the appellant in Bliss. I repeat my conclusion that, in the circumstances of this case, the failure to see an approaching vehicle which was visible for some 5 seconds cannot reasonably be attributed to momentary inattention or inadvertence. I do not consider that Bliss requires any contrary conclusion.
Conclusion
For these reasons, although I consider that there is force in the appellant’s submissions concerning her alleged failure to “register” the advisory signs, I do not consider that the appellant has made out her second ground of appeal. As stated earlier, it is not necessary in these circumstances to consider the first ground of appeal.
I would dismiss the appeal.