R v Pannett - [2015] SASCFC 52

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PANNETT
[2015] SASCFC 52
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Nicholson)
28 April 2015
TRAFFIC LAW - DEFINITIONS - OTHER DEFINITIONS
TRAFFIC LAW - OFFENCES - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against convictions. The appellant was convicted of two counts of committing an aggravated act likely to cause harm and one count of aggravated driving in a manner dangerous to escape police pursuit. The circumstances of the offending were that the appellant was riding a motorcycle in the early hours of the morning in a public reserve while intoxicated and with a pillion passenger. The appellant rode his motorcycle in the direction of police officers who had attempted to apprehend him, nearly causing a collision. The appellant, having been sprayed with capsicum by police, rode out of the reserve onto a public road and crashed into a Stobie pole.
Whether the verdict for committing an aggravated act likely to cause harm was unsafe and unsatisfactory. Whether ‘the public’ included the defendant’s pillion passenger. Whether the defendant and his pillion passenger were skylarking. Whether it was open to the jury to conclude beyond reasonable doubt that the defendant’s riding of a motorcycle was dangerous to the public.
Held per the Court (dismissing the appeal):
1. The jury were in the best position to assess the truthfulness and reliability of all the witnesses. The conviction for committing an aggravated act likely to cause harm was open on the evidence.
2. The defendant’s pillion passenger was a member of the public for the purpose of the offence of driving in a manner dangerous to escape police pursuit.
3. The evidence did not support a finding of skylarking by the defendant and his pillion passenger.
4. Whether the defendant’s driving was dangerous was a question of fact for the jury. It was open for the jury to conclude beyond reasonable doubt that the defendant’s driving of his motorbike was driving in a manner dangerous to the public.
Criminal Law Consolidation Act 1935 (SA) s 19AC(1) and s 29(3), referred to.
R v S [1991] 22 NSWLR 548; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Firth v Prestwood (1987) 44 SASR 427; Graham v Police (2001) 122 A Crim R 152; Senior v Police [2005] SASC 88; Jiminez v The Queen (1992) 173 CLR 572, considered.

R v PANNETT
[2015] SASCFC 52
Court of Criminal Appeal: Gray, Sulan and Nicholson JJ
THE COURT.

This is an appeal against convictions.
At his trial before a jury in the District Court, the defendant and appellant, Trevor Daniel Pannett, pleaded not guilty to four counts of committing an aggravated act likely to cause harm[1] and one count of aggravated driving in a manner dangerous to escape police pursuit.[2] The jury returned not guilty verdicts in respect of the first two counts and verdicts of guilty in respect of the remaining counts. This appeal relates to one of the verdicts of guilty of the offence of committing an aggravated act likely to cause harm and the offence of aggravated driving in a manner dangerous to escape police pursuit. The defendant did not appeal against the verdict of guilty in regard to the remaining count of aggravated act likely to cause harm.
[1] Criminal Law Consolidation Act1935 (SA) section 29(3).
[2] Criminal Law Consolidation Act1935 (SA) section 19AC(1).
The Prosecution Case
During the early hours of 30 April 2013, police attended at an address at Elizabeth East, where it appeared that the defendant and another man had engaged in an altercation over a motorbike. Following the altercation, the defendant rode away on the motorbike. A short time later, he returned and rode directly toward a police officer. This incident was the subject of the first count on the information, being a count on which the jury returned a verdict of not guilty.
A short time later, at about 2.00 am, the motorbike was seen by police in a reserve at Elizabeth East. It was the prosecution case that, while in the reserve, the defendant rode his motorbike in the direction of two police officers, Higgins and Vanderaa. Those officers had left their police vehicle in a laneway leading into the reserve and were on foot seeking to apprehend the defendant in the reserve. At this time, the defendant had a pillion passenger on the motorbike. Evidence was led that the defendant rode his motorbike at Officer Higgins intending to cause him harm or being recklessly indifferent as to whether such harm was caused. It was claimed that the defendant was aware that he was a police officer acting in the course of his duty. This incident was the subject of the second count on the information, being a count on which the jury also returned a verdict of not guilty.
It was the prosecution case that, while in the reserve, the defendant rode his motorbike at Officer Vanderaa intending to cause him harm or while being recklessly indifferent as to whether such harm was caused. It was claimed that the defendant was aware that he was a police officer acting in the course of his duty. This incident was the subject of the third count on the information, being a count on which the jury returned a verdict of guilty. This verdict is the subject of the present appeal.
Another police car had come upon the scene and had stopped at the entrance to the reserve close to the adjoining roadway – Kinkaid Road. Officers Roberts and Hewish proceeded on foot a short distance down the path into the reserve. They became aware of the approach of a motorbike and immediately returned toward their vehicle. When they had almost reached their vehicle, the motorbike drove past. On the prosecution case, the defendant rode his motorbike toward Officer Roberts knowing the act was likely to cause her harm and intending to cause her harm or being recklessly indifferent as to whether such harm was caused. It was further alleged that the defendant was aware that Officer Roberts was a police officer acting in the course of her duties. This incident was the subject of the fourth count on the information, being a count on which the jury returned a verdict of guilty. This verdict is not the subject of appeal.
As the defendant rode past Officers Roberts and Hewish, capsicum was sprayed toward his face. It was common ground that the defendant had a blood alcohol reading of 0.117 grams of alcohol in 100 millilitres of blood. This reading was obtained about four hours after the incident. The defendant rode from the pathway to the reserve onto Kinkaid Road at a relatively slow speed. A police vehicle was cruising at a low speed in front of him and Officers Roberts and Hewish had regained their vehicle and taken up a position behind the defendant’s motorbike. An attempt was made to instruct him to stop but the defendant did not respond to this instruction. Apparently, the officers concerned were waiting for helicopter backup. Matters came to an abrupt conclusion when, at a relatively slow speed, the defendant rode onto the footpath and into a Stobie pole to his left. This incident was the subject of the fifth count on the information, being a count on which the jury returned a verdict of guilty. This verdict is the subject of the present appeal.
The Defence Case
The defendant did not give evidence and called no evidence as part of the defence case.
In respect of count three, the defendant invited the jury to conclude that the prosecution had not proved the elements of the offence and that, in reaching that conclusion, they should consider the evidence of Officers Higgins and Vanderaa to be unreliable.
In respect of count five, the defendant invited the jury to conclude that the prosecution had not proved the elements of the offence and, in particular, had not proved that there was any danger to a member of the public.
The Summing Up
No complaint was directed at the terms of the trial Judge’s summing up. The Judge discussed the elements of the particular offences. The Judge provided an aide memoire concerning the elements of the offences and other discrete topics. In the discussion that follows, we have extracted those parts of the directions and the aide memoire of particular relevance to the issues on the appeal.
The Judge, in the course of his summing up, directed the jury about the elements of the offence of committing an aggravated act likely to cause harm. The aide memoire also set out those elements. There was no objection by counsel to the provision of the aide memoire. It is convenient to extract the direction as to the elements from the aide memoire:
The elements of each of counts 1, 2, 3, and 4 are the same.
The basic offence of committing an act likely to cause harm consists of 5 elements, each of which must be proved by the prosecution beyond reasonable doubt. They are as follows:
1.That the accused committed a voluntary and intentional act of driving the motorbike at the police officer in question. An unconscious, accidental or non-deliberate act would not be sufficient.
2.That the accused’s act of driving at the relevant police officer was likely to cause harm to Willmott in count 1; Higgins in count 2; Vanderaa in count 3; or Roberts in count 4.
The relevant act need not in fact cause harm. It is sufficient that the act of driving created a real and substantial risk of harm to that person.
3.That at the time that the accused drove, it being the relevant act in respect of each particular count, the accused knew that his driving was likely to cause harm to Willmott in count 1; Higgins in count 2; Vanderaa in count 3; or Roberts in count 4.
4.That the accused either positively intended to cause harm to Willmott in count 1; Higgins in count 2; Vanderaa in count 3; or Roberts in count 4 or, was recklessly indifferent to whether such harm was caused.
Either intention or reckless indifference will suffice. An accused is recklessly indifferent if he is aware of a real and substantial risk that his conduct in so driving could result in harm to the relevant police officer, and he performs the act, despite the risk. That is he realized that there was a real and substantial risk that his conduct would result in harm to the police officer in respect of the count you are considering but nevertheless performed the act of so driving the motorbike at the police officer.
5.That the act of so driving was without lawful excuse. The prosecution must prove that the driving was without lawful excuse. However if the prosecution has proved beyond reasonable doubt each of the first four elements of the offence, the accused must not be found guilty if he persuades you on the balance of probabilities that he had a lawful excuse for his conduct.
The accused does not have to prove beyond reasonable doubt that he had a lawful excuse. But he must persuade you that it is more likely than not that he has a lawful excuse. IF he does not so satisfy you then the prosecution will be taken to have satisfied you beyond reasonable doubt as to this fifth element.
Obviously if the prosecution has failed to satisfy you of any one of the first five elements then you must return a verdict of not guilty to the offence that you are considering.
6.The charged offence in each of the four counts is in the aggravated form. The prosecution must prove in each case the aggravating factor, alleged by it. In this case the prosecution must prove beyond reasonable doubt that the offence was committed against a police officer and that the accused knew that the person in each count was a police officer acting in the course of his or her official duties.
If you find all of the first five elements of the basic offence proved beyond reasonable doubt and also the sixth aggravating element then you will find the accused guilty as charged of the particular count you are considering.
If however you find all of the first five elements of the basic offence proved beyond reasonable doubt, but you do not find the aggravating factor has been proved by the prosecution beyond reasonable doubt, then you will find the accused not guilty of the charged offence but guilty of the basic offence of committing an act likely to cause harm.
Against this background, we turn to count three. The Judge summarised the effect of the prosecution evidence on this count as follows:
The two witnesses who gave evidence as to these counts were Constables Higgins and Vanderaa. Both were wearing the police uniforms, the blue ones they wore in court, except for short sleeves.
...
Constable Higgins said that he and Constable Vanderaa had walked down the laneway to the reserve. They heard voices, they could see nothing. They then went back and retrieved their police vehicle and drove it into the laneway to the point of the gate. Constable Higgins said that the headlights of the police vehicle were left on, shining into the reserve. Constable Vanderaa said the same thing. Constable Higgins said he was carrying a police issue torch, but could not remember if Constable Vanderaa was. He said both he and Vanderaa entered the reserve with Constable Higgins slightly in front. He said with the headlights shining into the reserve, he could make out the outline of a motorbike on the other side of one of the Stobie poles. He ran towards it. He became aware of the engine of the motorbike revving. He ran as direct a line to the motorbike as he could. When it started to move, he knew that someone was riding it, but could not make it out beforehand. He said the bike turned around and drove in the direction of himself and Constable Vanderaa, heading towards the laneway leading to Kinkaid Road. It was only 5-10 m away, said Constable Higgins, when he saw there was a passenger. Again he repeated: he saw no light on the motorbike.
He said it travelled first in a loop as identified in that Exhibit P7. He said the motorbike had gone between a small tree and a group of trees. He moved behind the small tree while the motorbike passed. He said the nearest it got to him was some 5-10 m away. He said it was travelling quite fast. He said he then watched Constable Vanderaa jump out of the way of the motorbike, jumping towards the larger group of trees. He said the motorbike would have been very close to the position where Constable Vanderaa was before he jumped. He said it was travelling at more than 25 km/h and seemed fast. He said he then returned to the police car.
...
Again, the issues [on count three] are: did the accused see Mr Vanderaa? Did he drive at him? Did he intend to harm him? Or did he become aware that there was a substantial risk of causing harm to Constable Vanderaa and, being recklessly indifferent, he drove at him in any event. The question again is when he saw him, if he did see him. Again, if he did not see him because it was dark in the reserve then he could not be found guilty of count 3. Again, if he did see him, did he drive directly at him, very close to the spot where he was before he threw himself to the left? You must take into account the reaction time, alcohol and surroundings.
The Judge reminded the jury of counsel’s addresses and, in particular, of the following defence submission:
[Defence counsel] addressed the question of Mr Vanderaa in count 3. He said this: ‘Unless you are satisfied beyond reasonable doubt that those police car head lights were on -’ and he reminded you as to what Constable Roberts and Hewish had said, when they were walking along they did not see any lights - if it was completely dark in that particular area with no other form of artificial lighting then you could not exclude as a reasonable possibility that the accused did not know that there were police officers there nor anyone else. It is likely indeed that he did not see them at all. He said if it is reasonably possible that the accused did not see Constables Higgins and Vanderaa, then the prosecution will not have proved its case on count 3 beyond reasonable doubt. You must in those circumstances return a verdict of not guilty.
He said then if indeed he had seen Vanderaa and you were satisfied about that, the question is when was it that the accused had seen Constable Vanderaa. He was, on his evidence, only 2 m behind Constable Higgins. The accused was driving between a single tree and a clump of trees, was it too late to do anything about it when he sees him for the first time in the dark. He could not possibly in those circumstances react quickly enough to either form an intention or to be aware of what to do. He was driving to the exit, you might find, he said, not at the police officers in those circumstances. He repeated that neither Constable Roberts nor Constable Hewish had seen the police car or any light in the Reserve. The point is that you must be satisfied beyond reasonable doubt that the police car was there with its lights on to light up the reserve. He submitted using the following words ‘How on earth can you be satisfied that the two police officers told the truth -’ that is to say Constable Higgins and Vanderaa ‘- that the light was shining in the reserve’. He reminded you again that Constables Roberts and Hewish had got at least 10 m up the driveway walking and that it was in complete darkness on their evidence. He submitted to you that you should not be satisfied that the prosecution had proved beyond reasonable doubt the state of lighting in that particular reserve. You could not exclude that it was completely dark. Even if there was light you could not exclude the possibility that the accused did not see Vanderaa until, it was far too late. You could not be satisfied that he intended to harm him or was recklessly indifferent. Even if you got to that stage, you would have to take into account the question of the intoxication, ladies and gentlemen, the effect upon his awareness, the dark uniforms, the short period of time.
In respect of count five, again with the additional reference to the aide memoire, the Judge directed the jury as to the elements of the offence. In that respect, the aide memoire provided:
It is an offence for a person who, intending to escape pursuit by a police officer, drives a motorbike in a manner dangerous to the public.
It is an aggravated form of that offence if the person committed the offence while there was present in his blood a concentration of more than 0.08 grams of alcohol in 100 millitres of blood or alternatively the accused was, at the time of the offence, driving while knowing that he was disqualified from holding or obtaining a drivers licence.
There are four elements of the basic offence of driving in a manner dangerous to escape police pursuit, each of which the prosecution must prove beyond reasonable doubt.
Those elements are:
1. That the accused was the driver of the motorbike.
2.That the accused’s driving of the motorbike was a voluntary or intentional act. Proof of dangerous driving does not require any evidence of Mr Pannett’s state of mind. Mr Pannett does not need to have intended to drive in a manner dangerous to the public. Whether he realised that he was driving dangerously, if you are satisfied that he was driving in a manner dangerous to the public, is immaterial. The test is an objective one. His driving must be judged through the eyes of a reasonable rider in the position of Mr Pannett.
3.That the motorbike was being driven by the accused in a manner which was dangerous to the public.
4.That by driving in that manner the accused intended to escape pursuit by a police officer.
Obviously if the prosecution has not satisfied you beyond reasonable doubt as to any of the first four elements then you must return a verdict of not guilty to this charge.
5.The prosecution must prove beyond reasonable doubt the aggravating factor necessary to make out the offence in the aggravated form. In this case the prosecution must prove beyond reasonable doubt either that at the time of committing the offence the accused had in his blood a concentration of 0.08 grams of alcohol in 100 millilitres of blood or that at the time of the offence when driving the motorbike, the accused knew that he was disqualified from holding or obtaining a drivers licence.
In the subject case, as you know from the Statement of Agreed Facts (Exhibit P14), both aggravating factors have been agreed – namely that the accused’s blood had a concentration of more than 0.08 grams of alcohol in 100 millilitres of his blood at the time of riding the motorbike, and that he was at that time, and he knew at that time, that he was disqualified from holding or obtaining a drivers licence. You will therefore have no difficulty in finding proved the aggravating factor.
I do stress however that you must not reason that because the accused rode the motorbike with that blood alcohol level or rode while disqualified that he is of bad character and is the sort of person who would have committed the subject offence or offences.
If you find all four elements of the basic offence proved beyond reasonable doubt and you also find the aggravating factor as proved beyond reasonable doubt then you will find the accused guilty as charged.
INTOXICATION
... Further on the prosecution case on Count 5, the evidence of the blood alcohol level is a relevant circumstance for you to consider as part of the other circumstances as to the manner of driving. If a rider was unable to exercise effective control of a motorbike because of the amount of alcohol he had consumed then this could be evidence of dangerous driving.
But you must note that being affected by alcohol does not, of itself, amount to driving in a manner dangerous to the public. Whether or not the accused was driving in a manner dangerous to the public is a matter for you to determine after taking account of all of the circumstances of that night, which you find proved to your satisfaction. Did the accused’s alcohol consumption affect his ability to see and appreciate his surroundings. Did it cause him to lose concentration or engage in risk taking.

The Judge when summing up identified the first of the principal issues in respect of this count as follows:
Now, the principal issues in respect of this count 5 are firstly whether the prosecution has satisfied you that the accused drove the motorcycle on Kinkaid Road in a manner dangerous. Secondly, whether he had the intention to escape a police pursuit. As to the issue of driving in a manner dangerous, I have taken you through that and the questions you will ask yourself. As I say, you may well conclude the accused was driving at a low speed when it came up behind and passed the vehicle driven by Constable Kruk in which Constable Armstrong was the passenger. You might conclude that behind them was the vehicle driven by Constable Roberts with Constable Hewish in the passenger seat. Speed itself in this case, you may well think, cannot be dangerous; it was slow. Alcohol of itself, you might consider, was not dangerous. You will however take into account all of the circumstances, including the OC spray and the manner of driving with a pillion passenger.
If you are satisfied that he had that intention - that is the very reason for being on Kinkaid Road - then you will turn to the manner of driving which I have already discussed with you. I direct you again that the public includes the pillion passenger, includes the police on that street. But you will take into account all of the circumstances: slow speed, and all the circumstances, the risk of an injury, if it was an injury, how serious or otherwise, you will weigh up as to whether, in fact, he was driving in a manner dangerous.
[The prosecutor] asked you to accept that the bike was swerving from side to side, that the accused was affected by alcohol, that he was also affected by the OC spray and continued to ride the bike, putting the pillion passenger in danger of some injury. You will consider the effect of all of those matters to determine whether, in fact, he was driving in a manner dangerous.
The Judge reminded the jury of the following submission of defence counsel:
As to be [sic] count 5, [defence counsel] said you should not infer the specific intent to escape the pursuit on Kinkaid Road. He submitted you could not be satisfied on the evidence that the accused drove that bike in a manner dangerous to the public. He said look at the speed, it was a crawling pace. In those circumstances, you weigh up the risk of an injury, the risk of a collision, any damage would have been slight in those circumstances and that you ought not be satisfied that it was driving in a manner dangerous.
...
He said no-one was endangered, it was slow speed, no-one was at risk of an injury. He invited you to find him not guilty of the charged offence in count 5, but did say to you that when you came to consider the question of aggravated driving without due care that that may - depending upon your findings - be open on the evidence.
The Appeal
Count Three – Aggravated Act Likely to Cause Harm
The only ground of appeal in respect of this count was that the guilty verdict was unreasonable, unsafe and unsatisfactory. Counsel pointed out that no challenge had been made to the conviction on count four, the incident in which the defendant rode his motorbike in the direction of Officer Roberts. It was contended that, in reaching the verdict of guilty on that count, the jury must have accepted the evidence of Officers Roberts and Hewish as being both accurate and honest. Their evidence was said to include their accounts that the reserve was in complete darkness and that no headlights were shining into it. This evidence was said to directly conflict with that of Officers Higgins and Vanderaa and, in particular, their evidence that there was lighting in the reserve sufficient to see the motorbike. It was said that this conflict was stark and irreconcilable. This led to the submission that it was not open to the jury to exclude the reasonable possibility that the defendant did not see Officer Vanderaa in the reserve and did not deliberately ride his motorbike at him.
Counsel appearing for the Director of Public Prosecutions on the appeal acknowledged that there was an inconsistency between the evidence of Officers Roberts and Hewish on one hand, and Officers Higgins and Vanderaa on the other. It was accepted that this inconsistency related to whether the reserve was illuminated by the headlights of the police vehicle driven by Officers Higgins and Vanderaa, which was parked some distance into the laneway. The Director’s submission was that it was open to the jury to accept the evidence of Officers Roberts and Hewish in respect of the incident the subject of count four that occurred in the laneway and close to the exit to Kinkaid Road and to reject their evidence insofar as it related to other events in the reserve that evening. It was pointed out that the Judge specifically directed the jury that such an approach was available to them.
Before coming to address the evidence of the witnesses, it is convenient to first refer to the relevant extract from the summing up concerning how the jury might address conflicts and inconsistencies in the evidence. The Judge directed as follows:
Generally as both counsel said, the assessment of a witness’s evidence involves two steps. The first one is to decide whether the witness was honest. That is, whether he or she was honestly attempting to tell you the truth. If you are satisfied that you have an honest witness the next step is for you to determine whether the evidence given by the witness is reliable and accurate. You will appreciate there are times when a person might honestly believe that what he or she is telling you is the truth but in fact it might be wrong. There may be an inaccurate or unreliable account of some aspect of the evidence. Now this might arise for all sorts of reasons without for one moment casting doubt upon a person’s honesty. It may be because of a lapse of memory, it may be because of the stressful circumstances in which witness’s found themselves, with them concentrating on one aspect of the matter, not picking up another. It may involve other events in a witness’s life. That a person is unreliable in one respect does not of itself affect that person’s honesty. So you will need to assess both aspects of the evidence, that is, a witness’s honesty and reliability. That is all a matter of common sense, you know that from your everyday life.
You are not bound to accept all of what a witness may say or reject all that the witness may say. You are entitled to reject some parts and accept other parts of a witness’s evidence. In making that assessment you ought have regard to the impressions the witnesses made upon you when giving evidence in that short space of time you saw them; consider the intrinsic likelihood or unlikelihood of the version the witness gave. Consider the manner in which the witness gave evidence to you. Consider how the story that they gave, stood up to cross-examination and how that evidence they gave you fits in with the evidence of others that you might find compelling.
Now witnesses, in this case the police officers, may vary in background, degrees of intelligence, personality and character. You had I think one or two Irish born police officers who gave evidence to you. It is necessary for you to make allowances for personal qualities and characteristics. Some witnesses are more nervous than others. I am sure you appreciate that. Some are more articulate than others. When giving their evidence of events that night take into account the surroundings in which they found themselves. It is common ground, that it was early in the morning, with young officers on late night duty directed to go to different areas. They explained those circumstances to you. Were the officers stressed at the time? These are the sorts of matters you might take into account. But if you think that a witness has deliberately lied to you on a topic, then that may well cause you to assess the balance of that witness’s evidence with special care.
Now the factors I have just mentioned to you, they are only just some of the factors, they are only guides to assist you in ascertaining the facts. As I say, use your common sense, use your background, your knowledge of people when you come to assess whether each witness was truthful and reliable, ladies and gentlemen.
A summary of the prosecution evidence is as follows. Officer Higgins gave evidence that he and Officer Vanderaa drove into the driveway which took them to the reserve. Their vehicle was facing the reserve and its headlights were shining into the reserve. Officer Higgins took a torch into the reserve. As soon as the car headlights were illuminating the reserve, he saw the outline of a motorbike. He and officer Vanderaa approached the motorbike. It drove in their direction and toward Kinkaid Road. Officer Higgins moved behind a tree to get out of the path of the motorbike. The closest it got to him was 5-10 metres. Officer Vanderaa leapt out of the way of the motorbike. He moved just enough to get out of the path of the motorbike, which was driving straight at him. Officer Higgins was aware that another police car had pulled up behind his vehicle.
Officer Vanderaa gave evidence that when he parked in the laneway he left his head lights on high beam, which illuminated the reserve and the motorbike. Officer Higgins took a torch into the reserve. The motorbike drove directly toward him. He jumped out of the way and the motorbike drove where he had initially been standing. When he left the reserve, he did not notice any other police car parked in the laneway.
Officer Roberts gave evidence that she drove into the laneway with headlights on. Once she stopped the vehicle and got out of the car, the headlights were turned off. She could not see any other police cars parked in the laneway. In particular, she did not see a patrol car parked at the other end of the laneway. She did not get that far. The reserve was dark. She did not notice any light on the reserve or any high beams shining into it.
Officer Hewish gave evidence that he did not recall any other cars being in the laneway. When he approached the reserve it was in complete darkness. He did not recall seeing any lights on in the reserve or a police car with high beams on.
The Judge when summing up drew particular attention to defence counsel’s submission concerning inconsistencies between the police witnesses:
You recall that Mr Henchliffe addressed you about what he said were inconsistencies between what some of the police officers said in their evidence to you and what he or she may have said on an earlier occasion or what he or she may have omitted to say on an earlier occasion. I will not repeat them. You recall that there were a number of matters he put to you. In terms of omissions, he said that you would have expected, someone, whether it be Mr Higgins, Mr Vanderaa or Constable Hewish to say something immediately to Police Communications, ‘Look, this bloke drove at us’. He submitted that you ought think very carefully about the fact that none of the officer’s conveyed to communication that they had been placed in peril.
Ladies and gentlemen, in relation to such omissions or inconsistencies, generally speaking you expect witnesses to be consistent when they are giving evidence about an event. If they are not, then you might be inclined to place less weight on what they say to you in court. But it is necessary for you to keep in mind the basic principle, a that case is decided on the evidence given on oath or affirmation in court and subject to cross-examination. If a witness says something outside court which is inconsistent with his or her evidence in court or omits to say something which you might have expected to have been said, you may take into account that inconsistency or omission when considering whether to accept the credibility or reliability of the evidence given to you by the witness in court.
Now of course some so-called inconsistencies, some so-called omissions, may concern such a trivial aspect that we are inclined to give them no regard at all. It can be simply put down to the circumstances of the night, memory loss or a whole myriad of things. What was important to them at the time.
At the other end of the scale, some inconsistencies or omissions are so fundamental that they may entirely undermine the witness’s evidence and may cause you to lose faith entirely in the evidence given to you by that witness. Now if you find that there were some omissions or some previous inconsistent statements made by a witness, they are relevant but only relevant to your assessment of the credibility and reliability of that witness. It is for you to say what impact, if any, sufficient demonstrated inconsistencies or omissions in the evidence of a witness or even between witnesses may have upon your assessment of the credibility of that witness.
The Judge summarised in detail the witnesses’ evidence and set out for the jury the issues that arose in relation to the evidence. The Judge made reference to the submissions of counsel in relation to those issues.
The jury verdict is entirely consistent with an acceptance, as truthful and reliable, of the evidence of Officers Roberts and Hewish concerning the offence against Officer Roberts but a rejection, as unreliable, of their evidence concerning the lighting of the reserve. The verdict is consistent with a rejection of this aspect of the evidence of Officers Roberts and Hewish when considered in the context of the evidence as a whole, including in particular the jury’s apparent acceptances, as truthful and reliable, of the evidence of Higgins and Vanderaa concerning the state of lighting of the reserve. The jury was directed in conventional terms that such an approach was available to them.
In our view, it was open to the jury to accept that Officers Higgins and Vanderra were reliable and credible when they said that the park was sufficiently illuminated so that they could see the motorbike. The conclusion that the driver of the motorbike would also have been able to see them and drove at Vanderra intentionally was also open to the jury. Such findings accorded with the above extracted direction of the Judge. The jury were in the best position to assess the truthfulness and reliability of all the witnesses, including Officers Higgins and Vanderra.
Count Five – Aggravated Driving in a Manner Dangerous to Avoid Police Pursuit
On the appeal, the defendant submitted that the Judge erred in directing the jury that, when considering whether the defendant drove in a manner dangerous to the public, the public included the defendant’s pillion passenger. At the conclusion of counsel’s addresses, the following interchange took place between the Judge and defence counsel:
HIS HONOUR:                   Good morning. There is one matter I need to give a direction about, that's the issue whether the pillion passenger could be a member of the public for the purposes of driving in a manner dangerous to the public. I will get my associate to hand out a copy of a decision in Ardill v The Police, just p.5 deals with the issue, I think. It doesn't take away the matters you've raised about that, ... but I've got to give a direction that the pillion passenger does constitute a member of the public in that respect.
COUNSEL: I have some other authorities that are contrary to this. I have dealt with this issue in much detail before in a different case.
HIS HONOUR:                   As I say, I checked to see whether it has been disapproved since that time. I will still deal with the matters you raised. I will deal with the matters in terms of what you said.
COUNSEL:                Your Honour is aware of my position.
HIS HONOUR:           I am. I thought I would just raise that with you now.
Counsel drew attention to two early single Judge decisions in this State in which the Judge, in regard to comparably worded legislation, had concluded that a passenger in a motor vehicle was not a member of the public for the purpose of the relevant offence.
The first was a decision of Napier J, as his Honour then was, in 1929.[3] The second was a decision of Napier CJ in 1938.[4] The decisions were from a different road traffic era. Neither decision was closely reasoned. They are not binding on this Court. Counsel undertook a review of authorities both in this State and other States with reference to similar legislation but in different terms and noted that different opinions as to who may constitute the public had been expressed. It was correctly pointed out that these differences were the result of the specific wording of the offences and the particular factual scenarios under consideration. Particular attention was drawn to the decision of the New South Wales Court of Criminal Appeal in S.[5] Counsel went so far as to suggest that this decision was relevantly on all fours with the present proceeding and that, in accordance with Farah Constructions Pty Ltd v Say-Dee Pty Ltd,[6] this Court should follow S, as it could not be said that the decision was plainly wrong.
[3]    Kelly v Walsh [1929] SASR 481.
[4]    R v Coventry [1938] SASR 79.
[5]    R v S [1991] 22 NSWLR 548.
[6]    Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.
S[7] concerned a charge arising out of an incident on private land. The defendant and two passengers had been involved in racing in a motor vehicle on a home-made racing circuit and then driving dangerously in an adjoining paddock. It was not in issue on the facts that all were skylarking in a dangerous manner. The question arose as to whether the passengers in the vehicle were members of the public. Gleeson CJ, with whom the other members of the Court agreed, concluded that, in the particular circumstances, they were not members of the public. It is relevant to observe that Gleeson CJ took the view that, prima facie, passengers in a vehicle are members of the public, but that, in the particular case, as they were skylarking on private land, they were not to be so treated. Gleeson CJ expressly disclaimed that the case was any authority for such a conclusion for an incident on a public road. In that respect, it was noted that a Tasmanian authority was to the contrary. The Chief Justice did not suggest that authority was incorrect or should not be followed.
[7] R v S [1991] 22 NSWLR 548.
In this State, there are several single Judge decisions that allow the conclusion that the public, in respect of the subject offending, includes persons in a vehicle and would include a pillion passenger on a motorbike.
One of those decisions, Ardill,[8] was referred to by the trial Judge. It is convenient to set out the relevant extracts from that decision:[9]
[8] Ardill v Police [2005] SASC 450.
[9] Ardill v Police [2005] SASC 450, [22]-[27]. See also Firth v Prestwood (1987) 44 SASR 427; Graham v Police (2001) 122 A Crim R 152; Senior v Police [2005] SASC 88.
In McBride, Barwick CJ noted:
The section speaks of a speed or manner which is dangerous to the public. This 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 as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public… A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section.
This concept [dangerous driving] is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby.
The meaning of “dangerous to the public” was also discussed by Wells J in Pope v Hall:
... in all the circumstances, the impeached driving passed beyond the point where it represented a mere departure - and nothing more serious - from the rules of the ordinary highway code, and became so serious a departure from those rules that the manner or speed of the driving ... created a wholly unreasonable and unwarranted danger to the life, or limb, or both, of other road users … If one were directing a jury one would say: Ask yourselves how likely it was, in the circumstances, that an accident of some sort would occur, and, at the same time, assuming that an accident did occur, how serious it would be; it will be by weighing both those factors together that you will be able to determine the degree of risk created by the situation - in other words, how dangerous the defendant’s driving was.
The term “public” is not defined by the Road Traffic Act. However, the remarks of Burbury CJ when dealing with a comparable section in Smith are apposite:
The ‘public’ endangered by the speed or manner of his driving and therefore protected by the statute is therefore not to be regarded as a number of particular individuals endangered but as an innominate class. It is the section of the community as an aggregate shown to be actually or potentially within the ambit of danger created by the speed or manner of driving. The section is not concerned with breach of duty to drive carefully vis-a-vis a particular person.
In Mark Senior v Police, Sulan J in considering whether a driver himself or herself could constitute a member of the public noted:
There is a significant public interest in preventing road accidents, even those where the victim is the driver who is alone in a vehicle with no other persons being put at risk by the driving. The policy of the Act is to ensure that drivers of motor vehicles comply with the rules of the road and drive safely to avoid accidents which may result in death, injury or damage. There is both a social and economic cost to the community if road users are injured in accidents involving only themselves.
All road users, and in particular vehicle drivers and motorcyclists, should be alert to the dangers of the road. The everyday “carnage on the road” should bring home to all the need for vigilance and care. The need for defensive driving is important. These factors emphasise the need for compliance with the road rules...
...
... Allowance must be made for other road users, the appellant’s pillion passenger, the appellant himself, the police officer and the road users at the roundabout. A road user must contemplate that other drivers will expect road users to comply with the road rules and in particular to comply with speed limits...
[Footnotes omitted.]

We do not understand Gleeson CJ’s judgment in S[10] to address the circumstance of passengers in or on a motor vehicle on a public highway. As noted above, on a close reading of the reasons in S, it is clear that the Chief Justice did not intend the judgment to extend to that situation. In our view, it would be inappropriate to extend that reasoning to a public highway.
[10] R v S [1991] 22 NSWLR 548.
Ultimately, it is a question of fact as to whether, in the particular circumstances, the prosecution has proved that the defendant drove a motor vehicle in a manner which was dangerous to the public. We consider that passengers in or on a motor vehicle are within the description of “the public”. We specifically adopt and apply the extracted observations from Ardill.[11]
[11] Ardill v Police [2005] SASC 450.
Attention was drawn to the recent amendment to section 19AC(1) of the Criminal Law Consolidation Act 1935 (SA) and, in particular, the change of wording from “the public” to “any person”. It was suggested that this amendment, which post-dated the present offending, indicated that “the public” had not, prior thereto, extended to any person and supported the construction advanced by the defendant. A review of the second reading speech discloses that the amendment was brought forward as a consequence of a particular decision of the District Court of South Australia, where the Judge had followed S[12] in regard to an incident that occurred on private land. In our view, the conclusion cannot be drawn that Parliament was acknowledging an earlier restricted meaning to “the public” in respect of offending on a public highway. We consider that Parliament was seeking to restate the law to avoid any possibility of ambiguity.
[12] R v S [1991] 22 NSWLR 548.
In our view, the evidence at trial did not allow for the reasonable possibility that the defendant and his pillion passenger were merely skylarking on a public road. There was no evidence on this topic. All that could be said is that the pillion passenger may have been aware that the defendant was, to some extent, affected by alcohol. We do not consider that this evidence was sufficient to provide a factual foundation for the assertion of skylarking.
Finally, it was argued that it was not open to a reasonable jury to conclude beyond reasonable doubt that the defendant’s riding of a motorbike was dangerous to the public. It was argued that this required proof that the defendant’s driving created a real risk of danger to the public. It was further claimed that the only persons who were at risk of injury were the defendant and his pillion passenger.
The earlier extracted remarks of Barwick CJ in McBride[13] were adopted by the High Court in Jiminez.[14] The majority said:[15]
The manner of driving encompasses "all matters connected with the management and control of a car by a driver when it is being driven". For the driving to be dangerous for the purposes of s. 52A there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention. Although a course of conduct is involved it need not take place over any considerable period...
[Footnotes omitted.]
[13] McBridev The Queen (1966) 115 CLR 44.
[14] Jiminez v The Queen (1992) 173 CLR 572.
[15] Jiminez v The Queen (1992) 173 CLR 572, 579 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ).
Whether the defendant’s driving was dangerous was a question of fact for the jury. There was evidence from which the jury could conclude beyond reasonable doubt that the defendant’s driving of his motorbike was driving in a manner dangerous to the public. In particular, the evidence allowed the jury to find that the defendant was intoxicated, was suffering the effects of having been sprayed with capsicum, was swerving on the road, rode close enough to a police car to create a risk of a collision and drove off the road, up the kerb and onto a footpath. The consequences of the defendant’s driving, namely a collision with a Stobie pole, support the conclusion that the defendant’s driving was dangerous to the public.
Conclusion
We would dismiss the appeal against both convictions.