R v Palmer - [2008] SADC 122

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PALMER
Criminal Trial by Judge Alone
[2008] SADC 122
Ruling of His Honour Acting Judge Wilson
17 September 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
Aggravated driving in a manner dangerous to the public - the accused was doing "doughnuts" for fun on private property, with some friends as passengers, as part of a joint escapade - whether the accused and the deceased and the other two passengers are to be characterised as "the public" - no case to answer - directed verdicts of acquittal - trial judge declines to exercise the Court's discretion under s350(2) of the Criminal Law Consolidation Act to reserve for consideration and determination by the Full Court the relevant question raised by the decision in R v S.
Criminal Law Consolidation Act s19A, s350(2) and (3), referred to.
R v S (1991) 22 NSWLR 548, applied.
Graham v Police (2001) 122 A Crim R 152; Ardill v Police [2005] SASC 450; Senior v Police [2005] SASC 88, distinguished.

R v PALMER
[2008] SADC 122
REASONS FOR RULING OF NO CASE TO ANSWER
The elements of aggravated causing death by dangerous driving

The elements (or ingredients) of the offence of aggravated causing death by dangerous driving, [s19A of the Criminal Law Consolidation Act], which are particularised in the Information, are each to be proved beyond reasonable doubt by the prosecution.
Those elements are, first, that the accused was the driver of the motor vehicle, the red HiLux; secondly, that the motor vehicle was being driven in a manner which was dangerous to the public. The sub-elements of that element involve consideration of the concepts of ‘dangerousness’ and ‘the public’; thirdly, that, by driving in that manner, the accused caused the death of the deceased when the HiLux rolled onto its side and the deceased’s head was squashed, leading to his death; and, fourthly, that the accused did all that as part of a prolonged, persistent and deliberate course of bad driving.
A key matter of fact
A key matter of fact to be proven (element number two) is that the accused’s manner of driving was dangerous to the public and, to that end, that there were persons at risk characterised as ‘the public’ and, specifically, that those persons were the accused and the deceased and two other passengers, all friends.
I pause here to indicate that the two friends, apart from the accused and the deceased, are Justin Chapman and Steven Buchanan. As to the friendship between those persons, I refer to pp.391, 397, 400, 401, 404 and 414 of the transcript. Those passages in the evidence of Justin Chapman indicate that there was social contact between those men, that there was a relationship of friendship, and that the incident in question arose out of skylarking participated in by all four men of their own volition. Relevant passages in the evidence of Steven Buchanan are to be found at pp.420, 421, 439, 442, 446, 447, 448, 467, 470 and 472. The effect of all that evidence was that there was a pretty good relationship of friendship between those men, that the mood of the Party held on the day in question was happy, that, when the men who entered the HiLux were in that vehicle, there was much laughing and joking, and that everyone was laughing and yelling and was “loving it”.
Was the doing of ‘doughnuts’ on private properly with friends as passengers dangerous to “the public”?
The question has arisen as to whether it can be said, as a matter of law, that the accused’s manner of driving, which I assume for present purposes was dangerous, in doing ‘doughnuts’ or ‘ringies’ in his car on private property, with him driving and with the deceased and the other two of his friends as passengers, was dangerous to the public.
The question has therefore arisen as to whether it can be said, as a matter of law, that the accused and his three passengers were, in those circumstances, to be regarded as members of the public who were subjected to the risk of danger.
Defence submits no case to answer
Defence counsel has made an application to me, as the trial judge at this stage, when no further evidence is to be adduced by the prosecution, to direct that there is no case for the accused to answer. This means that the defence has submitted that, putting the evidence at its highest from the prosecution’s point of view, there is insufficient evidence (indeed, no evidence) to the effect that the accused’s manner of driving was, in the circumstances, dangerous to the public - because the accused, the deceased, and the other two passengers, who were the only persons endangered, cannot be characterised as ‘the public’.
It was submitted that the absence of evidence to prove a necessary element of the charge would mean that the accused could not lawfully be convicted [see May v O’Sullivan (1955) 92 CLR 654, Zanetti v Hill (1962) 108 CLR 438, and R v Bilick (1984) 36 SASR 321].
No case submission upheld
I uphold that submission. As a matter of law, in the circumstances of this case, where the incident occurred in a paddock on private property, and with no-one else in close proximity, the accused and the deceased and the other two passengers, who were all friends, cannot be characterised as ‘the public’.
The operation of s19A(1) of the Criminal Law Consolidation Act is not limited to events occurring on a road, and ‘the public’ can, in certain circumstances, include passengers who are in the vehicle being driven, but, in circumstances where the activity said to be ‘driving in a manner dangerous to the public’ is part of a joint escapade, amongst friends comprising the accused and the deceased and the other two passengers, to do ‘doughnuts’ or ‘ringies’ for fun, and they are the only persons endangered by the activity, it is not proper to characterise the accused and the deceased and the other two passengers as ‘the public’. I rely upon, and am persuaded by, R v S (1991) 22 NSWLR 548.
Adopting and adapting what Gleeson CJ said in R v S (at p 554) to the facts of the present case, the evidence shows that, in the circumstances of the present case, there was a relationship (of friendship) between the passengers and driver which negates the conclusion that the passengers are to be regarded as members of the public … The activities in question were taking place on private property and away from any road …. The accused and his three passengers, including the deceased victim, were all, knowingly, engaged in a form of skylarking. The four of them willingly got into the vehicle in question (the HiLux) together for the purpose of amusing themselves by a particular, and somewhat dangerous, form of recreational activity (known as doing ‘doughnuts’ or ‘ringies’) directly connected with the driving of the vehicle (in tight circles with the steering wheel on full lock and the accelerator applied) …. The activity constituted a danger to all four of them, but to nobody else … In circumstances where it is, as is the case here, proper to regard the activity … as part of a joint escapade on the part of the accused and the passengers, they being the only persons endangered by the activity, then I would not regard it as proper to characterise the passengers as ‘the public’.
I am persuaded, by the reasoning of Gleeson CJ. That case, persuasive as it is, is not to be distinguished from the case at bar. The facts and the relevant statute are extraordinarily similar to the facts and the statute in the present case.
My conclusion might well have been otherwise if the relevant words of s19A had been ‘a manner dangerous to any other person’ rather than ‘a manner dangerous to the public’. Mr Henchliffe has informed the court that such is the position now in New South Wales following an amendment to s52A in that State enacted in about 1995 after R v S was decided.
It is the relationship of friendship between the passengers (including the deceased) and the accused (the driver) which produces the consequence that the passengers, in the circumstances here, are not to be regarded, as a matter of law, as members of the public. I so conclude having regard to the purpose of s19A.
I see it as appropriate to add, as did Gleeson CJ in R v S, with whose judgment Handley JA and Loveday J agreed, the implied recommendation for law reform (which, it is understood, was implemented in New South Wales):
The words of the learned Chief Justice of the Supreme Court of New South Wales, later to become Chief Justice of the High Court of Australia, (at p.554) were:
It may be thought unsatisfactory that there is room for doubt in individual cases, but this is the necessary consequence by the use by the legislature of the expression a manner dangerous to the public rather than a manner dangerous to any person. The expression which the legislature has employed is time-honoured, and for decades courts have drawn attention to the possibility of doubtful cases …
Persuasive as the single judge decisions of the Supreme Court of South Australia in Graham v Police (2001) 122 A Crim R 152, Ardill v Police (2005) SASC 450, and Senior v Police (2005) SASC 88 are, I am the more convinced by the reasoning of Gleeson J in the Court of Criminal Appeal in New South Wales.
It would appear that R v S was not cited to any of the judges who were called upon to hear and determine those justices appeals, all of which were concerned with the Road Traffic Act and not the Criminal Law Consolidation Act, and all of which were concerned with incidents on public roads and not on private property.
Earnest as Ms McDonald’s submissions were in attempting to distinguish R v S, and in attempting to rely upon the cases of Graham, Ardill and Senior respectively, I do not see how the evidence of the relatively high blood alcohol level, inferentially, on the part of the accused, or the fact that modifications were made to his vehicle, or the fact that his vehicle may have had a measure of unpredictability about it - ‘bouncing’ was the word used to describe it - could have any influence upon the question of the potentiality of danger to others who might constitute ‘the public’, apart from those already at risk, namely the accused and the deceased and the two other passengers. The issues of who constitutes ‘the public’ and the manner of driving cannot be, and ought not be, mixed.
The young man, Philip Cooper, is not to be characterised as a member of the public for present purposes.
An application to reserve questions of law under s350(2) of the Criminal Law Consolidation Act
Ms McDonald, on behalf of the Director of Public Prosecutions, submitted that, if I should be in doubt as to the legal position regarding the no case submission, and, in particular, as to the applicability of R v S in the circumstances of this case, then I should exercise this Court’s discretion under s350(2) of the Criminal Law Consolidation Act to reserve, for consideration and determination by the Full Court, the ‘relevant question’ raised by that decision, R v S, being ‘relevant to the trial of the defendant’, and to stay the proceedings or further conduct of this trial until the question has been determined by the Full Court.
The application of the Director of Public Prosecutions was opposed by the defence. I am not in doubt as to the law to be applied and,in particular, as to the applicability and force of R v S.
Furthermore, I consider that I should apply and give effect to s350(3) which provides:
(3)Unless required to do so by the Full Court, a court must not reserve a question for consideration and determination by the Full Court if reservation would unduly delay the trial … of the defendant.
In my judgment, to do as the Director of Public Prosecutions has urged upon me would involve undue delay, [see Application For Reservations of Questions of Law No.2 of 1999, (1999) SASC 260. This trial has already involved six days for a voir dire hearing and more than six days, including one day for a view, for the hearing of evidence adduced as part of the prosecution case.
Summary
In summary, I uphold the defence submission that there is no case to answer. There will be a directed verdict of acquittal or, should I say, directed verdicts of acquittal.
I decline to exercise this Court’s discretion under s350(2) of the Criminal Law Consolidation Act to reserve for consideration and determination by the Full Court the relevant question raised by the decision in R v S, and to stay the further conduct of this trial to facilitate such a hearing and determination by the Full Court.