R v Michels - [2006] SASC 102

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v MICHELS
Reasons for Ruling of The Honourable Justice Layton
6 April 2006
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - PROOF AND EVIDENCE
Submission by defence that there was no case to answer - whether insufficient evidence on prosecution case to establish the accused drove in a manner dangerous to the public - whether evidence established that the accused's driving had involved such gross inattention as to be characterised as dangerous to the public - Held: evidence sufficient, if accepted, to produce in the mind of a reasonable person satisfaction beyond reasonable doubt of each element of the offence - a case to answer - application refused.
Criminal Law Consolidation Act 1935 s 19A(3), referred to.
Zanetti v Hill (1962) 108 CLR 433; R v Bilick (1984) 36 SASR 321; McBride v The Queen (1966) 115 CLR 44; R v Coventry (1938) 59 CLR 633; R v Taylor (Unreported, Supreme Court of South Australia, 19 June 1998), applied.
Bliss v The Queen (1993) 173 LSJS 255, distinguished.
The Queen v Mayne (1975) 11 SASR 583, considered.

R v MICHELS
[2006] SASC 102

LAYTON J: On 17 March 2006 I ruled that there was a case to answer in the trial of Vicky Lorna Michels for four counts of causing bodily harm by dangerous driving. I now take the opportunity to publish brief reasons for my ruling.
The accused was charged on an Information with the following offences:
First Count
Statement of Offence
Causing Bodily Harm by Dangerous Driving. (Section 19A (3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Vicky Lorna Michels on the 7^th day of March 2004 near Port Vincent, drove a motor vehicle in a manner which was dangerous to the public and thereby caused grievous bodily harm to Monique Cavuoto.
Second Count
Statement of Offence
Causing Bodily Harm by Dangerous Driving. (Ibid).
Particulars of Offence
Vicky Lorna Michels on the 7^th day of March 2004 near Port Vincent, drove a motor vehicle in a manner which was dangerous to the public and thereby caused grievous bodily harm to Susan Gillett.
Third Count
Statement of Offence
Causing Bodily Harm by Dangerous Driving. (Ibid).
Particulars of Offence
Vicky Lorna Michels on the 7^th day of March 2004 near Port Vincent, drove a motor vehicle in a manner which was dangerous to the public and thereby caused ~~grievous~~ bodily harm to Robyn Kathleen Hambour.
Fourth Count
Statement of Offence
Causing Bodily Harm by Dangerous Driving. (Ibid).
Particulars of Offence
Vicky Lorna Michels on the 7^th day of March 2004 near Port Vincent, drove a motor vehicle in a manner which was dangerous to the public and thereby caused ~~grievous~~ bodily harm to Christopher Steley Martin.[1]
[1] The Information was amended to delete grievous from the particulars of Counts 3 and 4.
Following the conclusion of the prosecution case counsel for the accused made submissions that there was no case to answer. The accused had been driving along the Port Vincent to Minlaton Road on the Yorke Peninsula, with two passengers in her car. The prosecution case was that she drove into an intersection with the Main Coast Road at between 53 and 58 kilometres per hour; she failed to obey the give way signs at that intersection and she collided with a Ford utility travelling along the Main Coast Road. The prosecution case was put on the basis that the concentration that the accused brought to bear on the task of driving prior to the collision was so defective that she did not register the advisory signs prior to the intersection or the give way signs themselves, and that her lack of concentration subsisted over a considerable length of road and she also failed to register the presence of the utility.
In her submission that there was no case to answer, Ms Nelson QC, counsel for the accused, asserted that there was no evidence to support any of these allegations of gross inattention by the accused. It was submitted that the mere fact that the accused entered the intersection and became involved in the collision could not be an intermediate fact to establish that the accused’s lack of concentration was such a gross departure as to constitute dangerous driving. Further, it was submitted that even accepting all inferences available to the prosecution, the accused’s driving could not be classified as dangerous driving.
The test as to whether or not there is a case to answer has been expressed in the following manner. The issue with respect to every element of the offence is whether there is some evidence which if accepted would either prove the element directly or enable its existence to be inferred.[2]
[2] Zanetti v Hill (1962) 108 CLR 433 at 422.
The question is:
on the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution is accurate, and on the further assumption that all inferences most favourable to the Prosecution which are reasonably open are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?[3]
[3] R v Bilick (1984) 36 SASR 321 at 337.
The only element that is in dispute in this case is the element of driving in a manner dangerous to the public. The relevant criteria for considering whether or not driving amounts to driving in a manner dangerous is whether or not the driving in all of the circumstances of the case is in a real sense potentially dangerous to the public. As was stated in the case of McBride v The Queen,[4] dangerous driving:
imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.[5]
[4] (1966) 115 CLR 44.
[5] (1966) 115 CLR 44 at 49 – 50.
It is has also been said in R v Coventry[6] that:
it is…wrong to exclude an act or omission from “manner of driving” because it is casual or transitory in some senses in which these somewhat flexible words may be understood. Such an exclusion may even suggest that carelessness or inattention may constitute a defence to a charge under the relevant provision of the section. Sudden, even though mistaken, action in a critical situation may not, in all the circumstances of a case, constitute driving to the danger of the public. But casual behaviour on the roads and momentary lapses of attention, if they result in danger to the public, are not outside the prohibition of that provision merely because they are casual or momentary. Further, “manner of driving” includes, in our opinion, all matters connected with the management and control of a car by a driver when it is being driven. This includes starting and stopping, signalling or failing to signal, and sounding a warning or failing to sound a warning, as well as other matters affecting the speed at which and the course in which the car is driven.[7]
[6] (1938) 59 CLR 633.
[7] (1938) 59 CLR 633 at 638-639 per Latham CJ, Rich, Dixon and McTiernan JJ.
It is to be noted that one looks at all of the circumstances of the driving. Failure to give way by itself does not necessarily amount to dangerous driving. Not all departures from due care and attention give rise to dangerous driving, and more than the mere failure to give way must be proved. However, as Duggan J indicated in the case of R v Taylor,[8] after citing Bray CJ in The Queen v Mayne,[9] ‘[t]here is no doubt that in some cases a failure to keep a proper lookout can, by itself, result in dangerous driving’.
[8] (Unreported, Supreme Court of South Australia, 19 June 1998).
[9] (1975) 11 SASR 583 at 585.
In this case counsel for the accused relied upon the case of Bliss v The Queen[10] and argued that the reasoning of the Court of Criminal Appeal in that case was equally applicable to the facts in this trial. The case of Bliss involved an appeal against a conviction for the offence of causing bodily harm by dangerous driving following a trial by judge alone. The relevant part of the appeal related to whether the trial Judge had erred in finding that the appellant’s driving could properly be described as dangerous to the public.
[10] (1993) 173 LSJS 255.
In Bliss Mullighan J, with whom the other judges agreed, said at 263-4 that:
the law has long recognised the difference between mere inadvertence or negligence which is an ordinary risk of using the road and conduct which is plainly blameworthy, i.e. driving in a manner dangerous to the public … As Bray CJ pointed out in The Queen v Mayne…at p. 585:-
“By empowering the jury to acquit of causing death by dangerous driving and to convict of driving without due care or attention, it [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.”
The existing legislation, ss.19a and 19b are in similar terms to the former ss.14 and 14a of the Criminal Law Consolidation Act. Of course, the quality of being dangerous to the public in the manner of driving does not depend upon the resultant damage or injury…
Standing back and considering the findings of the learned Trial Judge, 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 safely. 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. Whilst the manner of driving of [the other driver] is of no assistance in determining how to categorise the manner of driving of the appellant, her failure to see the appellant’s vehicle until the moment before the collision illustrates that defective lookout is, regrettably, common among drivers of motor vehicles.
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.
The facts in that case were that there was an accident just after dark at an intersection where the speed limit was 110 kilometres per hour; the accused had restricted vision by reason of the terrain and vegetation. There was no artificial light in the vicinity. The victim’s car was travelling at about 100 kilometres per hour and that was so in the 80 metres before the collision. It was found by the trial Judge that the 58-year-old driver was driving in second gear at the time of the collision.
Although the appellant in that case did not give evidence, she did give a statement to the police that the other driver was going so fast she did not see that vehicle. The trial Judge found that neither the victim nor the accused saw each other until only a split second before impact; further, because of the terrain and the cutting on the road, the accused could not have seen the headlights until the accused was about 60 metres from the intersection. The trial Judge found that there was insufficient time to take any or at least any effective evasive action to avoid the collision. The trial Judge also found that the appellant was familiar with the intersection and her common sense meant that she must have been aware that she was approaching a dangerous intersection with limited visibility. She was obliged to give way but did not or make any attempt to do so but because she approached and commenced to cross the intersection at a relatively low speed she had more than sufficient time to see the headlights and to stop or otherwise give way.
Whilst the facts in each case will vary, two significant elements of difference exist with the facts in Bliss and the alleged facts in the case before me. First, in this case it was open for the jury to find that the speed of the accused’s car was between 53 and 58 kilometres per hour at the point of impact, which was on the northern bound lane of Main Coast Road. It was also open to the jury to find that this speed had been maintained for some 100 metres before the intersection in spite of warning signs; the bitumen road was straight; it was a clear fine day and the car was in good condition.
The second difference is that in this case, although the accused’s view of Main Coast Road approaching the intersection was restricted, once the accused had reached 100 metres before the intersection, and the other vehicle had reached 179 metres before the intersection, they had views of each other. The driver of the other car saw the accused’s car, as did his passenger, and the driver of that car took evasive action to the extent that he was able to react and break over a period of 33 metres before collision. The accused in this case would also have had a similar opportunity to react. There are no skid marks which would indicate that the accused took any such evasive action and eyewitnesses, albeit with limitations, gave evidence that the accused’s vehicle did not slow down on entering the intersection.
In all of the circumstances, I think that the facts of this case are different from those in Bliss. In this case there was admissible evidence available to the jury upon which they were able to infer the relevant facts asserted by the prosecution. I consider that there was evidence which if accepted by the jury, would be sufficient to produce in the mind of a reasonable person satisfaction beyond reasonable doubt of the guilt of the accused. It is a question for the jury as to whether they would be so satisfied. I ruled that there was a case to answer and I refused the application