R v Munn

Supreme Court of South Australia
(Court of Criminal Appeal)
R v MUNN
[2017] SASCFC 68
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Auxiliary Justice Slattery)
15 June 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - GENERALLY
Appeal against conviction for causing death by dangerous driving. Where the appellant stood trial in the District Court with another man, “White”. Where each faced separate charge of causing death by dangerous driving. Where the prosecution alleged that the appellant’s driving caused White to drive dangerously, leading to White colliding with and killing a pedestrian. Where a jury found the appellant and White guilty as charged. Where permission to appeal was granted by a single Judge on two of five grounds. Where the appellant renews his application for permission on the balance of the grounds. Where the appeal focusses on the issue of causation, both on the evidence going to it and the directions about it in the Judge’s summing up. Where the appellant puts that the jury verdict was unreasonable.
Whether the Judge erred in failing to require the prosecution to particularise the actus reus of the charge against the appellant and failed to adequately identify the aspects of the appellant’s driving which might have caused White to drive dangerously. Whether the directions on causation were inadequate, contained misdirections and did not give the jury the assistance required. Whether the jury verdict was unreasonable or could not be supported by the evidence.
Held: Vanstone J (Kelly J and Slattery AJ agreeing):
The charge was adequately particularised. The directions on causation were correct and adequate. The verdict was well open to the jury. The time with which to appeal is extended to 14 October 2016. Permission to appeal on grounds one, two and four is refused. The appeal on grounds three and five is dismissed.
Perara-Cathcart v The Queen [2017] HCA 9; Royall v R (1990) 172 CLR 378; Campbell v R (1981) WAR 286; Scott v Stanford [1991] WASC 1127, considered.

R v MUNN
[2017] SASCFC 68
Court of Criminal Appeal: Vanstone and Kelly JJ and Slattery AJ

VANSTONE J: The appellant stood trial in the District Court with another man, “White”. They each faced a separate charge of causing death by dangerous driving, albeit with identical particulars. The prosecution alleged that the manner of the appellant’s driving – speeding and chasing the vehicle driven by White – caused White to drive dangerously and that this led to White colliding with and killing a pedestrian, who was crossing the road in White’s path.
The jury found each man guilty.
Permission to appeal was granted by a single judge on two of five grounds of appeal presented, being grounds three and five. The appellant renews his application for permission on the balance of the grounds. The grounds focus mainly on the issue of causation; both on the evidence going to it and the directions about it in the Judge’s summing up. It is also argued that the jury verdict was unreasonable and not supported by the evidence. The appellant is in need of an extension of time within which to appeal of the order of 16 days.
Background
The appellant and White were known to each other. On 12 April 2014, not long before midday, they saw each other on Hogarth Road at Elizabeth South. They exchanged some words of abuse and then White drove off. The appellant caught up with him at the intersection of Hogarth Road and Philip Highway. There, White was in the right turn lane to head north. The appellant initially pulled up beside him and more abuse was exchanged. Witnesses described the appellant “yelling and screaming” at White from his car. The appellant then reversed his car and moved to the left turn slipway of Hogarth Road where he stopped. He left his car and walked towards White, remonstrating with him. At that point White said to the appellant: “How’s your dead brother now”. This was a reference to the appellant’s brother, who had been a friend of White’s and who had recently died. The appellant was visibly angry at that utterance.
The traffic lights governing White’s lane then turned green and he executed his right hand turn onto Philip Highway. A witness described hearing White’s engine “revving” and his tyres screeching as he took off. The appellant then went back to his car. He was seen to drive over the traffic island protecting the slipway, and then diagonally across the intersection to follow White’s path to the north.
White’s passenger “Savage” gave evidence for the prosecution. Savage said he was 43 years of age and was the cousin of White. He said that after White turned right he noticed that they were travelling at a faster speed and he wondered why. He looked in the rear vision mirror on his side of the car and saw the appellant’s car behind them. He said it was swerving from the left to the right lane. He gave various estimates as to how far behind their car it was, ranging from about 10 metres, to four to six car lengths, and four or five car lengths. Savage said “… we saw the Commodore flying up trying to catch us”. He said it was catching them. A closed circuit television camera was located on the Rose and Crown Hotel just north of the intersection of Philip Highway with Blake Road and approximately 90 metres south of the point of impact. It captured vision of both vehicles, separated by about 10 seconds. The point of impact was about 640 metres from the intersection of Philip Highway and Hogarth Road, where the two men had exchanged words. It appeared the deceased had attempted to cross Philip Highway near to but not on a pedestrian crossing. After White hit the pedestrian he left the car and saw that the appellant was standing on the footpath near the scene. He said the appellant was yelling abuse at White. The appellant yelled: “F…, look what you’ve done, you’ve just killed a man”. He also said the appellant was laughing and swearing at White.
At trial the appellant did not give or call evidence. The accused White gave evidence. He said that as he drove past the appellant’s parked car, he “flipped him a finger”. Then, as he waited to turn right at Philip Highway the appellant’s car drew alongside him. He said that the appellant was “screaming and yelling” at him from within his car. Thirty to forty seconds later the appellant approached on foot having parked his car. He came close to White’s car and again started “yelling and screaming” and “spitting out the mouth”. White said: “He was wanting me to fight and towards sort of the end of it he just said: “You’re a dead man”.” White then made the remark about the appellant’s late brother.
The lights turned green and White drove off. He said that as he drove north up Philip Highway he “seen him coming up behind me at a rapid pace”. He said “it seemed to me that he was catching me”. That scared White as he was not sure what the appellant was going to do. Asked to estimate his speed just prior to hitting the pedestrian he said: “I don’t think it was any more than 80 – 90k, in between that speed, I think, 80/85”.
It is important to understand the way the case was pitched against the appellant. Although the charge did not particularise the dangerous driving alleged against the appellant, prosecuting counsel specified in his opening address that the prosecution case was that the appellant, having regained his car, was speeding and chasing after White. Counsel said that the appellant’s vehicle was seen to “accelerate up Philip Highway”, and that on the prosecution case it was “clear that he was chasing Mr White”. In summarising the case against the appellant counsel said:
The prosecution says for that first step he was voluntarily driving his car. We then say he was driving dangerously to the public, in particular he was speeding, dangerously so. In addition and more importantly, the manner of his driving plus speeding to actively chase Mr White in circumstances where he had demonstrated some aggression when out of his car shows the further level of dangerousness. We say chasing another car at high speed exposes the public to grave risks. Those would be normally, of course, the risks, the consequences of your own speeding and risky driving but more significantly in this case, the risks created when you influence the behaviour of another driver in another car. In this case we allege that the reasonable person in Mr Munn’s position would have realised that his speeding and his chasing was likely to impact on Mr White’s driving behaviour, obviously by encouraging him to go faster and by distracting him from keeping a proper and safe lookout. That, we say, creates the dangerous situation on our roads.
In his closing address prosecuting counsel took up the same theme. He said:
So if you find that Mr Munn’s chasing Mr White in a way likely to make Mr White notice and react by driving badly, probably speeding and not paying attention, then on that basis you can find that he was driving dangerously.
He went on:
The risk is that you make the other person drive precisely that dangerous way that Mr White did. I mean, there’s a car speeding down the road who is worried about the person chasing them from behind and not paying proper attention. … If you accept the prosecution’s factual allegations and the witnesses in relation to how Mr Munn drove, you will have no trouble finding that he was chasing Mr White because it’s obvious.
It can be seen that the case presented by prosecuting counsel was that the appellant’s driving was dangerous because it created the risk that the driver being chased would be influenced by it and would be distracted and go faster. Further he alleged that the appellant’s driving had that impact: that it caused White to drive dangerously. Nonetheless, the appellant complains that in directing the jury the Judge failed to adequately distinguish between the entirety of the appellant’s driving which could amount to dangerous driving, as against the driving which White saw and which could have had an effect on White’s manner of driving.
Prosecuting counsel acknowledged that the Crown needed to prove that the appellant’s dangerous driving was a substantial cause of the collision. He said this would be proved if the jury found that the appellant’s driving “had a real impact on Mr White’s decision to himself drive dangerously, which is what, of course, physically caused the collision”.
Arguments on appeal
Proposed grounds one and two were argued as two facets of the same complaint. Ground one complains that the Judge failed to require the prosecution to particularise the actus reus of the charge against the appellant. Ground two complains of a failure to identify those aspects of the appellant’s driving which might have caused White to drive dangerously.
Counsel for the appellant, Mr C.S.L. Abbott SC, argues that in proving that the appellant’s driving was dangerous in its own right the prosecution could rely on all his driving, from the time he regained his car to the time when the collision occurred. The appellant’s counsel conceded that if the entirety of the appellant’s driving were considered, it amounted to dangerous driving. However, counsel put that when it came to the question of causation, only that part of the appellant’s driving which was observed by White could have caused a response in White, namely to drive dangerously. He complains that this was not made clear to jury; instead, there was a merging of the two issues. That was said to occur particularly because in his directions the Judge used expressions such as the appellant’s “manner of driving” and “his driving”, without making it clear that only what White saw of the appellant’s driving could have had an effect on White. The jury should have been told that a finding needed to be made about what part of the appellant’s driving was seen by White before considering the question of causation. It was argued that references to the appellant “speeding” and “chasing” were unhelpful as the acts which could have founded a conclusion of chasing should have been, and were not, identified.
Ground three, upon which permission was granted, asserts that the directions on causation were inadequate, contained misdirections, and did not give the jury the required assistance on the questions of “proximity, remoteness and the potential for there to be a break in the chain of causation”. It was acknowledged that the Judge directed the jury that causation would be proved if the prosecution proved that the appellant’s driving was a substantial and operating cause of White’s dangerous driving, and that this caused the death. However, it was put that, once the jury found proved a chain of causation, it needed to consider whether that chain was broken by White’s conduct, or indeed, the deceased’s imprudent decision to cross the road. It was suggested that even if White perceived himself to be chased, his reaction to it – to speed and drive recklessly and dangerously – should have been left to the jury as possibly amounting to a break in the chain of causation. The jury needed to be directed on, and to consider, whether White’s reaction to the appellant’s driving was a reasonable one, or a reasonably proportionate one.
Reference was made to Royall v R (1990) 172 CLR 378. This was a self‑preservation case. There, the victim fell from the bathroom window of her sixth floor flat and died. The prosecution case was that she was subject to attack by the defendant and was either pushed, or fell while retreating, or jumped to save herself from his violence. In dismissing the appeal against conviction for murder, a majority of the High Court found that the victim’s conduct did not break the chain of causation if the response of the victim was reasonable in terms of self‑preservation.
In the present case it is said that there should have been a direction to the jury that, unless the reaction of White to the appellant’s conduct was reasonable, there was a break in the chain of causation. The appellant argues that the facts of the present case clearly raised the issue of a break in the chain. The appellant argues that this was an issue raised by the appellant’s then counsel in his final address, although Mr Abbott accepted that counsel then acting focused on “a no causation position”, whereas the present analysis was more subtle.
Proposed ground four complains of a direction in the summing-up suggesting that certain submissions about the facts by counsel for White could be used in considering the question of whether the appellant’s driving had real impact on White’s driving.
Ground five complains that the jury verdict was unreasonable and cannot be supported having regard to the evidence. Particular focus is placed on whether it was open to the jury to find that the appellant’s driving was a substantial cause for White driving dangerously, and even if it were, whether the jury could reject the contention that White’s excessive speed, recklessness and inattention broke the chain of causation.
Counsel pointed to evidence from which he said it could be reasoned that the appellant was “some 100 to 200m” behind White at the time of the collision, and that the appellant might have been going more slowly than White. If the appellant was only travelling at, say, 70kph, then that would not amount to dangerous driving. On that hypothesis, what had an impact on White (if anything did) was not the dangerous driving of the appellant, but merely the fact that the appellant was following him. Mr Abbott further argued that White could not have seen the earlier part of the appellant’s driving: the mounting of the traffic island, and the diagonal crossing of the intersection. It was said that these things could prove dangerous driving, but were not related to causation as they could not have had an impact on White.
Consideration
Proposed ground one is a complaint that the Judge did not require the prosecution to particularise and identify the acts of the appellant that were alleged to have made up the actus reus of the offence charged. The immediate answer to this complaint is that there was no request by the appellant’s legal advisors at any stage for an order requiring the prosecution to further particularise the charge. In any event, the prosecutor set out the basis of his case when he opened on it to the jury. He made clear that the conduct relied upon in relation to the charges faced by each accused man was different. As I have already outlined, he told the jury that the Crown case in terms of the appellant’s conduct which allegedly caused White to drive dangerously was the appellant’s speeding and chasing of White “in a way likely to make Mr White notice and react by driving badly”. He said: “Mr White’s charge relates to his dangerous speeding and his defective lookout. [The appellant’s] charge relates to his speeding and his manner of driving in chasing Mr White and therefore having an impact on his driving behaviour”. Plainly, that referred to the appellant’s driving on Philip Highway, having left the intersection behind.
To the extent that it is said that the appellant’s driving needed to be further deconstructed and analysed, I reject that submission. The act of driving is the end result of the execution of numerous decisions taken by the driver. Observations about driving are, of necessity, impressionistic and mostly generalised. To say that a vehicle appeared to be chasing another is as much an observation about the behaviour of a vehicle, as it is a judgment about the driver’s motives. It was open to any counsel to explore with the relevant witnesses the basis for the use of that word. But that is not to say that those matters needed to be further particularised. The nature of the case against the appellant was, in my view, made very clear.
The suggestion that the Judge, in his directions to the jury, failed to identify what were the acts of the appellant relied on as having an impact on White’s driving cannot be sustained. In explaining the elements of the charge, and in particular the element of dangerous driving, the Judge also distinguished between the conduct of the two accused men. In relation to the appellant his Honour said:
The prosecution case against Mr Munn is different. It is alleged that his manner of driving was dangerous because, by driving as he did, he was likely to induce a belief in Mr White that he was being chased and thereby, according to the prosecution, created a risk that Mr White would drive to evade Mr Munn and that it would distract him from concentrating on his speed and his lookout.
(The direction continued, but it is not necessary to reproduce it in full.)
Further into the summing up the Judge addressed the issue of causation. He said:
The same applies to causation in relation to [the appellant’s] charge. As I said earlier, it is the prosecution case that it was his manner of driving which led Mr White to draw the conclusion that he was being chased and that it created a risk that he would take evasive action and not be fully concentrating on the road ahead and on his speed. It is for you to consider not only whether [the appellant] created that risk but also whether, in doing so, his behaviour was a substantial cause of Mr Oates’s death.
[The prosecutor’s] submission to you is that his driving was a real and substantial factor in Mr White’s driving. It, in his words, had a real impact on what he did.
[Defence counsel] submitted to you that, really, [the appellant’s] behaviour was irrelevant to what happened; it had no influence on Mr White’s decision to drive fast and not concentrate in where he was going because he started doing that right back at the intersection with Hogarth Road, when [the appellant] was still out of the car as a pedestrian.
So there are issues which have been presented to you but, in relation to the third element, that of causation, there are the issues which you are to consider in relation to [the appellant], whether it has been proved beyond reasonable doubt that his driving, whatever you find as to his manner of driving on the evidence, in [the prosecutor’s] words, had a real impact on what Mr White did. [italics added]
As can be seen the Judge referred to the question of whether the appellant’s driving had a real impact on White’s driving and whether it was a real and substantial factor in White’s driving. Plainly, only that part of the appellant’s driving which was observed by White could have an impact on his driving; except, perhaps that the very fact that the appellant had apparently returned to his vehicle, negotiated the intersection and reduced the distance between the two vehicles would have made it obvious to White that the appellant must have been travelling quickly in the interval before he came into White’s view. In my view it was an obvious matter, and it was only reinforced by the words used by the Judge and by the manner in which the Judge encapsulated counsel’s submission on the issue. The way in which prosecuting counsel presented the case and the way the Judge referred to it were absolutely consistent. It was not suggested by anyone that the appellant’s conduct in driving over the traffic island or traversing the intersection could have been seen and have had an impact on White. In my opinion, this was such an obvious matter that the Judge did not need to further explain it to the jury.

I reject the suggestion that the jury should have been instructed to make an intermediate finding about what part of the appellant’s driving was seen by White. No doubt that was a matter for discussion. However the jury members were not required to reach an agreement about it.
In relation to ground three, the directions on causation, the appellant’s counsel acknowledges that the Judge repeatedly directed the jury that the question of causation devolved to whether the appellant’s driving was a substantial cause of the death of the deceased. The Judge clearly explained that it need not be the only cause, that there could be more than one substantial cause. The complaint is that the jury were not instructed, that even if they reached that conclusion, they had to then go on to consider whether there was a break in the chain of causation. The particular break or intervening event which was suggested was White’s reaction to what he observed of the appellant’s driving, namely to increase his speed and to fail to pay attention to the road ahead.
The obvious difficulty with this argument is that if, as the jury found, White’s reaction to seeing the appellant advancing on him from behind was to become agitated, to increase his speed and become distracted from the road ahead, that is one of the very reactions that would be expected from a driver who was being chased by another driver. Far from being some sort of intervening event, or the product of an outside agency, or a reaction quite outside what might be expected, it was a natural reaction to the appellant’s conduct.
The facts of Royall were very far from those in the present case. There, the prosecution case had been put on any of three basis. That was because the prosecution had no means of proving what precisely led the deceased to fall from the window. The prosecution contended that whether the deceased was pushed by the appellant, or fell when retreating from him, or even jumped, thinking that if she remained she would be subjected to life threatening violence, the appellant was yet guilty of her murder.
In relation to this third possibility the Judge directed the jury that if the deceased jumped because she had a well-founded and reasonable apprehension that if she stayed she would be subjected to life threatening violence by the accused and that jumping gave her a better chance of saving her life, then the relevant causal link would be established. No complaint was made about this direction, either at trial or on appeal. Indeed, the grounds of appeal to the High Court were that the verdict was unsafe, and that the direction on recklessness was flawed.
Mason CJ expressed the general principle relating to self-preservation cases in this way at 388:
Generally speaking, an act done by a person in the interests of self-preservation, in the face of violence or threats of violence on the part of another, which results in the death of the first person, does not negative causal connexion between the violence or threats of violence and the death. The intervening act of the deceased does not break the chain of causation.
Mason CJ then went on to discuss different expressions of the required state of mind of the victim, settling at 389 on “a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape…”. Brennan J required the victim’s response to be “reasonable” having regard to the nature of the accused’s conduct and the fear it was likely to have induced, or, preferably, proportionate: 398. Deane and Dawson JJ at 412 said that in fright or self-preservation cases a direction that the victim’s fear must be well-founded or reasonable in all the circumstances will adequately raise the issue, as would a direction that the victim’s act must be the natural consequence of the accused’s behaviour. Toohey and Gaudron JJ at 425 preferred that the question of foreseeability not be introduced and approved a direction which advised the jury that causation was to be determined by the use of common sense. The jury might also be told that if the victim’s reaction was “quite disproportionate to the [accused’s] act, or was unreasonable, the chain of causation was broken”. McHugh J was the only member of the Court to require that the harm was of a type that was reasonably foreseeable as a consequence of the accused’s conduct: 451.
As can be seen, while the precise formulations are subtly different, the general principle for self-preservation cases is clear.
However, there is an important difference between the facts of Royall and the present case. Royall is concerned with the possible reaction of a victim to the defendant’s conduct. Here, White was not a victim; he was charged with a similar offence to that facing the appellant and they were on trial together. Although White spoke of his own conduct being a result of fear arising from the appellant’s conduct – in effect taking up the stance of a victim – the prosecution case was not so specific. Prosecuting counsel told the jury in his address that each man’s motivations were “not fundamental in this trial”. White might equally have been motivated to demonstrate that his vehicle could outrun the appellant’s. He might have taken the appellant’s conduct as an invitation to race. His statement in evidence that because of what he saw in his rear vision mirror he decided not to go to the Rose and Crown Hotel to meet his father, as he had planned, but instead to drive past it heading for the nearest police station may or may not have been accepted by the jury. But it certainly suggested that the appellant’s manner of driving was having an impact on him. In other words, White’s conduct may or may not have been concerned with self-preservation, but it was no part of the prosecution case to ascribe a motive to his behaviour.
For all these reasons, asking the jury whether White’s response to the appellant’s driving was a natural (or reasonable) consequence of the appellant’s conduct was undesirable. That is principally so because it was unnecessary, any such question admitting of only one answer. It would also have been confusing, as it would have incorporated a consideration of the co-accused’s motives into the elements of the charge against the appellant and that would have linked directions about the burden of proof to issues about White’s state of mind. In addition it was undesirable because it could have clouded the jury’s consideration of the relevant issues for determination in the case against White. For these reasons I consider that the trial Judge was correct not to introduce the idea of a break in the chain of causation in his directions on that topic.
It is worth noting that counsel for the appellant at trial did not seek such a direction. Although the appellant’s counsel suggested that in defence counsel’s final address he raised the spectre of a break in the chain, I can detect no hint of that in the pages of transcript cited. The case presented on behalf of the appellant was that there was no proved chain of causation at all. That counsel did not seek such a direction at trial does not prevent Mr Abbott putting the argument to this Court. However, the failure to seek the direction in the Court below tends to indicate that counsel did not see scope for the jury to reason that even if there were a causal link between the driving of the two men, the chain of causation might have been broken. This very point was addressed by the plurality in Perara-Cathcart v The Queen [2017] HCA 9. At [60] their Honours Kiefel, Bell and Keane JJ said:
Of course, the trial judge was not relieved of the duty cast upon him by s 34R(1) by the manner in which the case was conducted for the defence; but the absence of an application by counsel for the defence for a further direction affords some practical indication that the trial judge, whose task was to direct the jury only as to so much of the law as they needed to know to resolve the real issues in the case, succeeded in that task.
Mr Abbott’s further argument in support of this ground was that it was necessary that the jury be given a direction based on the second sentence of the following statement of Burt CJ in Campbell v R (1981) WAR 286, 290:
Whether in this context it be permissible or helpful to introduce the word “substantial” in a direction to the jury upon causation is a question upon which I would prefer at present to express no opinion. It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.
This direction was referred to with approval in Royall by Mason CJ at 387-8. Toohey and Gaudron JJ, at 425, observed that it is undesirable to introduce the concept of foreseeability into the direction and the jury should be told that the question is one of common sense, quoting the second clause of the latter statement of Burt CJ.
I do not consider that the reference to Campbell’s case assists the appellant. There the defendant had been acquitted of manslaughter but found guilty of causing death by dangerous driving. The evidence showed that just prior to the fatal collision the victim performed a slow U-turn on the road ahead of the defendant, so as to block the path of the defendant’s oncoming car. Defence counsel argued that this, rather than the defendant’s speed, was the direct cause of the collision.
The complaint on appeal in Campbell’s case was that, in the final stages of his summing up when the trial Judge was encapsulating the disputed elements of the charges, he entirely omitted any reference to the need for proof of causation. It was in that context, and in explaining what should be said about causation, that Burt CJ made the statement set out above. In allowing the appeal His Honour preferred to leave for another time the question whether the adjective substantial should qualify the word cause in explaining what was required to prove causation. (The propriety of adding that word is now settled.) It was, he said, a matter of the jury applying their common sense to the facts. The direction in Royall itself, which was upheld, did not speak in terms of philosophical or scientific questions, or of the attribution of legal responsibility in a criminal matter. The relevance of the statement made by Burt CJ was that the question of causation is one of common sense.
There was nothing about the arguments at trial or the summing up which required a direction in terms of the statement in Campbell’s case.
Proposed ground four arises from a reference made by the Judge to the final address of counsel for White. The ground was not addressed orally. In his closing address to the jury, counsel for White, Mr Apps, argued that as White drove down Philip Highway he took his eyes off the road ahead from time to time to look in the rear vision mirror to see what the appellant’s vehicle was doing. Counsel called that “momentary inattention” not amounting to dangerous driving. In the summing up the Judge referred to these submissions. He said:
If you accept Mr Apps’ submissions, then they also go to the prosecution case that Mr Munn’s behaviour had a real impact on Mr White’s driving but they do not go, I suggest, to whether Mr White was driving dangerously.
The evident purpose of this direction was to ensure that the jury adhered to the correct approach of objectively assessing White’s driving. The appellant complains of the direction that Mr Apps’ submissions could be taken into account in relation to whether the appellant’s conduct had a real impact on White’s driving.
In my opinion there is no substance in this ground. Mr Apps’ address contained submissions suggesting a manner in which the jury could view the facts. The jury were entitled to have regard to those submissions as they saw fit. There is no rule dictating that the submissions of one counsel cannot be used in considering the case against a co-accused. Nor could there be.
I would refuse permission to appeal.
In support of his argument on ground five, that the verdict returned against him was unreasonable, the appellant does not challenge the finding of dangerous driving, but argues that the finding of causation is unsafe. It is said that the appellant’s driving was so far removed from the death of the deceased as not to have been causative of it. Again, it is argued that not only should the jury have been directed about the possibility of a break in any chain of causation, but they could not safely exclude such a break. A number of matters were relevant to that conclusion. It was said that at the time of collision the appellant was 100 to 200 metres away from White. It was suggested that he might have been going more slowly than White. Counsel put that nothing that the appellant did on Philip Highway required White to go faster. White could have stopped his vehicle. The appellant’s conduct did not necessitate that White speed and neglect to keep a proper lookout.
Reference was made to a Western Australian single judge decision of Scott v Stanford [1991] WASC 1127. It was said that this case represented the application of the Royall principles beyond a self-preservation setting. There, a Magistrate had acquitted the respondent of causing bodily harm by dangerous driving. The respondent has been driving a motorcycle at an excessive speed and when the victim, a police officer, called upon him to stop, he failed to do so. The officer took up pursuit of him and that required her to travel in the police fleet at very high speeds. After following the respondent over a long distance the officer saw the appellant execute a turn and she attempted to follow him. However, perhaps because of the combination of her speed and gravel on the road surface she failed to take the bend, rolled the police vehicle and was injured. The Magistrate found that the driver was aware that he was being pursued.
The appeal judge, Murray J, considered Royall’s case. His Honour considered that the true question related to causation was whether the driver’s conduct could be said, in a common sense way, to have produced the action taken by the police officer, whether or not it was reasonable. He said that he found the police officer’s decision to drive the vehicle as she did to be a “fully informed, freely made decision”. The Judge contrasted the circumstances which might have impelled the deceased in Royall’s case to jump to the decision taken by the officer to pursue the respondent at such high speeds.
Interesting as the facts of Scott v Stanford are, I do not consider that the result in that case is any more than the application of the Royall principles to different facts by a single judge. It is noteworthy that the officer there took a decision to follow the offending driver for a long period over various terrain and at very high speeds. That can be contrasted with the short span of roadway concerned in the present case. As I observed in relation to ground three, White’s reaction to seeing the appellant behind him and catching him – to drive faster and take his eyes off the road ahead – was one of the very reactions which would have been expected from a driver in his position, given what had earlier occurred between the two men. That could not have been said of the police officer’s decision.
In considering the argument that the verdict was unreasonable it is relevant to refer to the evidence given by prosecution witnesses who observed the appellant’s driving on Philip Highway. Ms Webb said that she was in the right hand lane of Philip Highway and travelling at about 60 km/h when she saw the appellant’s car approaching hers. She said it was travelling “a lot faster” than her. She said she sharply accelerated to move out of his way. Having done so the appellant “went a lot faster” and “pulled away from her”. Ms Cameron observed both the appellant and White on Philip Highway. First White’s car overtook her and she estimated that it was travelling about 20 km/h faster than she was. It then “continued to increase in speed quickly”. A few seconds later she saw the appellant’s car in her rear view mirror. She said it caught up “very quickly” and overtook her, travelling at at least 80 km/h. She said it was “bouncing as it was driving fast” and it then pulled away from her. I have already referred to the evidence of Savage to the effect that the appellant’s car was “flying up trying to catch us”. Mr Shorrock used a similar word, he said the appellant’s car “flew” down towards the Rose and Crown Hotel. He said the driver must have “put it just flat down because the blue car had gone flat down and the white car did the same to catch up to him”. On the basis of a strong body of evidence, the jury was entitled to view the appellant’s conduct as a driver to be challenging and intimidating to White, and White’s reaction to it as entirely unsurprising.
It seems likely that the time lapse of ten seconds between the two cars at the point of the Rose and Crown Hotel may not have been a good indication of the distance between them. It is plain from his police interview that the appellant saw the collision ahead of him and he may well have been slowing down when caught in the camera at the Rose and Crown.
The issue for determination in relation to causation was not, as the appellant’s written argument put it, whether the appellant did anything which required White to go faster, but rather whether the appellant’s driving was a substantial cause of the death. It was plainly open to the jury to conclude that the appellant’s driving had a real impact on White’s speed and inattention to the road and so led to the deceased’s death. I have no misgivings whatsoever about the verdict.
In my view this ground is not made out.
Conclusion
For the foregoing reasons I consider that the appeal must be dismissed.
Since the extension of time sought is for a short period only, I would order that the time with which to appeal be extended to 14 October, 2016. Like the single Judge I would refuse permission to appeal on grounds one, two and four. I would dismiss the appeal on grounds three and five.
KELLY J: I agree that the appeal should be dismissed for the reasons given by Vanstone J.
SLATTERY AJ: I agree with the reasons given by Vanstone J. The appeal should be dismissed.

[2017] SASCFC 68

15 June 2017

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Causation

Sentencing