R v Pearse

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PEARSE
[2011] SASCFC 65
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Kourakis)
19 July 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - TEST OF LIABILITY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction - appellant convicted of causing death by dangerous driving - whether trial Judge misdirected the jury as to the meaning of 'driving in a manner dangerous to the public' and 'driving without due care' and the distinction between them - whether verdict was unsafe and unsatisfactory - whether the Judge erred in failing to give a circumstantial evidence direction and the evidence in respect of which that direction applied - whether the Judge misdirected the jury as to whether a jury verdict may be corrected.
Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 19A(1), referred to.
Kamleh v R (1990) 51 A Crim R 435; Jiminez v The Queen (1992) 173 CLR 572; R v Hendriksen [2007] SASC 304; M v The Queen (1975) 11 SASR 583; Bliss v R (1993) 173 LSJS 255; R v Coventry [1938] SASR 79; R v Mayne (1975) 11 SASR 583; R v Duncan (1953) 11 SASR 592, considered.

R v PEARSE
[2011] SASCFC 65
Court of Criminal Appeal: Sulan, Vanstone and Kourakis JJ

SULAN J: The appellant was convicted of causing death by dangerous driving contrary to section 19A(1) of the Criminal Law Consolidation Act 1935 (SA). The particulars of the offence are that on 4 November 2009 at Wandearah he drove a motor vehicle in a culpably negligent manner, or recklessly, or in a manner which was dangerous to the public and, thereby, caused the death of Vicki Lee Devlin. The appellant appeals his conviction.
The first ground of appeal is that the trial Judge misdirected the jury as to the meaning of “driving in a manner dangerous to the public” and “driving without due care” and the distinction to be made between them. There is a further ground of appeal that the verdict is unsafe, unreasonable and against the weight of evidence.
The appellant was refused permission to appeal on a ground that the trial miscarried as a result of defence counsel’s submissions in relation to the applicant’s appeal rights and the Judge’s attempt to address and respond to those submissions. The appellant seeks permission to appeal in respect of that ground.
A further ground is proposed for which permission to appeal is required, that being, that the Judge erred in failing to give a circumstantial evidence direction and to identify the evidence in respect of which that direction applied.
Background
The circumstances in which the accident that caused the death of Ms Devlin occurred are not substantially in dispute. The issue which arises is whether the trial Judge gave an adequate direction on the question of what conduct can amount to dangerous driving and, secondly, whether the driving in this case could amount to dangerous driving.
Port Broughton Road runs in an approximate north south direction and Wandearah Road runs in an east west direction. The deceased, Ms Devlin, was driving a Daewoo sedan in a northerly direction at a speed of approximately 110 kilometres per hour on Port Broughton Road at Wandearah. The appellant was driving a prime mover in a westerly direction on the Wandearah Road, approaching the intersection of that road and Port Broughton Road. The two vehicles collided in the centre of the intersection.
Wandearah Road has a bitumen surface. The speed limit immediately east of the intersection is 110 kilometres per hour. There is a give-way warning sign positioned approximately 72 metres east of a give way sign on the Wandearah Road, which is about seven metres from the intersection for vehicles approaching the intersection from an easterly direction, travelling west.
The area surrounding the intersection is flat, open cropped land with some trees dotted along the southern side of the road for vehicles travelling west on Wandearah Road. There were no other vision impediments for vehicles approaching the intersection, either along the Port Broughton Road travelling north or the Wandearah Road travelling west. It is not in dispute that the appellant had a clear view of vehicles approaching the intersection from the south, if he had looked in that direction, although it was put that the appellant may have had difficulty distinguishing the green Daewoo against the background of trees on the verge of the road.
The appellant is aged 63 and has been driving trucks since he was aged 17. He has never previously been convicted of any driving offence, nor has he been involved in any accidents, other than a car accident which was connected with a tyre blowout. Evidence at the trial was that he was of good character and had an impeccable driving reputation.
There were two eyewitnesses to the accident who were travelling in a vehicle in a northerly direction behind the deceased’s vehicle. She had overtaken them some distance prior to the collision. They estimated her speed to be at about 110 kilometres per hour. As their vehicle approached the intersection, both men saw the truck driven by the appellant approaching the intersection from the east. One of the witnesses, Mr Clow estimated that the speed of the truck was approximately 80 kilometres per hour as it approached the intersection. The other witness, Mr Stringer, estimated the truck’s speed at approximately 70 kilometres per hour. When he was interviewed, the appellant told the police that the top speed for the truck was 98 kilometres per hour, and that he was travelling between 80 and 95 kilometres per hour and was slowing down as he approached the intersection. He was unclear as to what speed he was travelling as he entered the intersection.
The appellant told the police that he saw the give way sign, that he believed that he had looked to the right and to the left, and that he had not seen the deceased’s Daewoo motor vehicle. Visibility was good at the time and there was no impediment to the appellant when he looked to see if the intersection was clear. The two witnesses also described a clear and uninterrupted view across the paddock towards the truck as it approached the intersection.
The appellant did not see the approaching Daewoo sedan. He took no steps to stop or to take evasive action to avoid the collision and his speed did not appreciably reduce as his truck entered the intersection.
The question which arises on the appeal is whether it was open to the jury to conclude that his lookout was so defective and his failure to slow down sufficiently amounted to driving in a manner dangerous to the public.
There is a further matter upon which the appellant relies. The appellant suffers from diabetes. He had been prescribed and was taking insulin for about one month prior to the accident. The appellant now contends that, based upon evidence of a doctor, it was possible that he was suffering a hypoglycaemic attack at the time of the accident which may have affected his driving. It is agreed that no illicit drugs or alcohol were a contributing factor.
Ground 1
The appellant contends that the jury must be directed that for the offence of dangerous driving to be made out, the act of driving must be in a manner which any reasonable person in the situation of the driver would recognise as dangerous in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public. In order to constitute dangerous driving, the driving must be more serious than that which occurs regularly on the road when drivers demonstrate a lack of care and attention than that which might be expected of them having regard to the human frailty of the ordinary driver. The jury must be directed that they are required to be satisfied beyond reasonable doubt that the driving was such that a reasonable person in the situation of the driver would understand that the conduct would give rise to a serious risk of injury to members of the public going beyond the ordinary risks of the road.[1]
[1] See Kamleh v R (1990) 51 A Crim R 435, 437.
In Jiminez v The Queen,[2] the High Court (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) said that for driving to be dangerous there must be some feature which is identified not as a want of care, but which subjects the public to a serious risk over and above the ordinary risks associated with the driving of a motor vehicle including driving by those who may, on occasions, drive with less than due care and attention.[3]
[2] (1992) 173 CLR 572.
[3] Ibid 579.
When the trial Judge was directing the jury about the elements of the offence, he commenced by discussing driving without due care. He said:
As may be obvious to you from the names of these two offences, the least serious of them is driving without due care or attention. This offence deals with any material departures from the standard of care which is expected of all motorists. It is at the lower end of the scale of seriousness of driving offences and this is so because the law recognises that none of us is perfect and that any of us may from time to time fail to drive with the degree of care and attention that the law requires and, because none of us is perfect, we have to accept that from time to time we will inevitably encounter a driver who is not driving with the degree of care and attention which the law requires and the law recognises that this kind of thing, that is to say, encounters with drivers who are not driving with quite the degree of care and attention which is required, is a risk which we all have to accept as one of the ordinary risks of the road.
But over and above this ladies and gentlemen, and as you would all probably know, there are people who at times drive in a manner which transcends mere driving without due care and attention and subjects any members of the public who may be on or about the road to some risk of injury which is over and above the risks which are ordinarily associated with driving and which any reasonable person in the situation of the particular driver would recognise as posing a very real danger to the public.
This is what the information charges when it asserts that the accused was driving in a manner which was dangerous to the public. It refers to the creation of the sort of risk which is in no sense an ordinary risk of the road of the kind which we must all accept and to a manner of driving which amounts to a fairly serious crime.
As you will have seen from what I have said, the question of whether the accused was driving in a manner which was dangerous to the public involves a consideration by you of whether a reasonable person, in the situation of the accused, would have recognised that the accused’s manner of driving subjected the public to a risk of injury over and above those ordinarily associated with driving.
Later in his summing up, he again repeated:
Second, the prosecution must prove that the accused was driving in a manner which was dangerous to the public, in the sense that his manner of driving was such that a reasonable person in his position, that is to say, a reasonable person who was in the circumstances in which the accused was at the relevant time, would recognise that the manner in which the accused’s vehicle was being driven subjected others to some risk over and above those ordinarily associated with driving and that it amounted to more than just mere driving without due care or attention.
Again, after he had directed the jury about some of the facts, he said:
In more expanded terms, it is the prosecution case that the accused’s failure to give way was due to inattention on his part and that in all the circumstances his inattention amounted to driving in a manner which was dangerous to the public in the sense that the prosecution points to the visibility, the warning sign, the give-way sign and the approaching Daewoo and submits that a reasonable person in the situation in which the accused was in, as he approached the intersection, would recognise that the attention which the accused was giving to the task of driving was so far below that which was required in the circumstances that it created a risk of injury to others who were on the road which was well over and above the risks of the road thus amounting to driving in a manner which was dangerous to the public.
There was then a further direction after the jury asked for a written direction. The Judge directed the jury in the following terms:
The second thing that the prosecution must prove is that the accused was driving in a manner which was dangerous to the public.
The accused would have been driving in a manner which was dangerous to the public if a reasonable person in his situation would recognise that his manner of driving created a risk of injury to others which was over and above the risks that are ordinarily associated with driving.
For the purposes of this element of the charge, ‘manner of driving’ refers to everything associated with the progress of the vehicle as it proceeds along the road, including, but not limited to, the speed at which the vehicle is driven, the location through which it is driven, the traffic conditions at the time, the degree of concentration, which the driver is giving to the task of driving and whether he or she is maintaining an adequate lookout for other vehicles and other hazards. Again, ladies and gentlemen, you may think that that concept is nothing more than common sense and a reflection of the reality of driving.
For the purpose of this element of the charge, the distinction which the law draws between the offence of driving without due care or attention and the offence of driving in a manner which is dangerous to the public tends to explain what amounts to driving in a manner which is dangerous to the public. This distinction must be borne in mind at all times.
All drivers are obliged to exercise skill and care in order to minimise the risk of injury to other users of the road. This obligation can be described as ‘the standard of care’ which drivers are required to observe.
The law recognises that human beings are not perfect and that they will make mistakes. Because of this, the law regards minor departures from the standard of care as driving without due care or attention and it regards such driving and the risks that it might create as being ordinary risks of the road, which all other drivers must be taken to accept.
By contrast, the law regards driving which is more serious than mere driving without due care or attention and which creates a risk of injury which is over and above the ordinary risks of the road to be driving in a manner which is dangerous to the public. It is the sort of driving that any reasonable person would regard as creating a risk of injury which is over and above driving without due care or attention and as driving which creates a risk of injury which is over and above the ordinary risks of the road.
The question of whether the accused was driving in a manner which was dangerous to the public is entirely objective. It is to be resolved by a consideration of whether a reasonable person in the situation of the accused, that is to say, a reasonable person who was in the circumstances in which the accused was during the moments leading up to the impact, would have regarded his manner of driving as creating a risk of injury, which was over and above the ordinary risks of the road.
In the written direction that was provided to the jury, it stated:
By contrast, the law regards driving which is more serious than mere driving without due [care] or attention and which creates a risk of injury which is over and above the ordinary risks of the road to be driving in a manner which is dangerous to the public. It is the sort of driving that any reasonable person would regard as creating a risk of injury which is over and above driving without due care or attention and as driving which creates a risk of injury which is over and above the ordinary risks of the road.
The question of whether the accused was driving in a manner which was dangerous to the public is entirely objective and it is to be resolved by a consideration of whether a reasonable person in the situation of the accused, that is to say a reasonable person who was in the circumstances in which the accused was in during the moments leading up to the impact, would have regarded his manner of driving as creating a risk of injury which was over and above the ordinary risks of the road.
The summing up must be considered as a whole. To constitute driving in a manner dangerous to the public, the prosecution must prove beyond reasonable doubt that the act of driving was such that a reasonable person in the situation of the accused would recognise the driving as dangerous, in that it involves a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public.
The trial Judge did not use that exact form of words in his direction to the jury. Nevertheless, his directions were clear and conveyed to the jury all of the elements referred to herein. I consider a jury would have been left in no doubt that in order to convict the appellant they had to be satisfied beyond reasonable doubt that the appellant’s driving and lack of care and attention must have been beyond a standard of care which is often observed in drivers and seen as an ordinary risk of the road. The jury were directed that the driving must be more serious and it must create a risk of injury which is over and above the ordinary risks of the road and which would be recognised as such by a reasonable person in the position of the accused. A jury would have understood that the driving must create a real risk to the public not a hypothetical or perceived danger.
Mrs Shaw’s complaint is that the trial Judge failed to consistently direct the jury that, for the elements of driving in a manner dangerous to the public to be made out, the jury must be satisfied beyond reasonable doubt, first, that the manner of driving was dangerous in that the driving subjected others who may be on the road to risks which are over and above the risks which exist in the ordinary course of driving and, secondly, that a reasonable person in the situation of the driver will recognise the driving as posing a real risk to the public. Mrs Shaw submits that, as to the second limb of the test, the Judge failed to direct the jury that the driving must be perceived by a person in the appellant’s position to amount to a real danger to the public.
In R v Hendriksen,[4] Doyle CJ, with whom Kelly J agreed, made it clear that there is no formula which is required for a trial Judge in directing the jury on what amounts to driving in a manner dangerous to the public. In my view, it should be made clear to the jury that the distinction between driving without due care and driving in a manner dangerous to the public is that due care occurs when people depart at times from the standard of a care and skill required of a driver on the road but, nevertheless, their driving would be regarded as coming within the ordinary risks of the road, whereas driving in a manner dangerous to the public requires that it be proved that a reasonable person in the situation of the driver ought to recognise the manner of driving creates a real danger to the public beyond the ordinary risks of the road.
[4] [2007] SASC 304.

In my view, the directions given to the jury in this case made the position clear. For example, in the written directions, the Judge referred to a risk of injury over and above the ordinary risks of the road. In my view, it would have been clear to the jury that, before they could find the charge proved, they had to be satisfied beyond reasonable doubt that a reasonable person in the accused’s position would have regarded the manner of driving as creating a risk over and above the ordinary risk, and that the risk involved the risk of injury over and above the ordinary risk an ordinary road user, or road users, take when they are using the road.
In my view, ground 1 is not made out.
Ground 3
The appellant contends that the verdict was unsafe and unsatisfactory. In M v The Queen,[5] the majority, Mason CJ, Deane, Dawson and Toohey JJ, considered and formulated the test to be applied when it is said that a verdict is unsafe or unreasonable. The test, as formulated, is whether the Court is of the opinion that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The Court in M said:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary the court must pay full regard to those considerations.[6] (References omitted)
[5] (1994) 181 CLR 487.
[6] Ibid 493.
Later their Honours said:
…In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner by which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. …[7] (Reference omitted)
[7] Ibid 494.
This is not a case in which there was conflict between the evidence of witnesses. This was a case in which almost all the facts were not contested. It is necessary for this Court to consider those facts and determine whether it is a significant possibility that the appellant is not guilty of the offence.
I have referred earlier in these reasons to the circumstances leading to the collision which resulted in the death of Ms Devlin. There can be little doubt that the appellant did not see the Daewoo motor vehicle at any time prior to the collision. When he was interviewed, the appellant told the police officer that the maximum speed that the truck could travel was 98 kilometres per hour, that he saw the sign about 70 metres from the intersection, he slowed but did not estimate his speed as he entered the intersection. The appellant told the police that he looked to the right as he approached the intersection and he had an uninterrupted view of about three to four kilometres. He was unable to recall looking to the left. He thought he did. He did not brake before the collision. He did not see what he had hit, and he only braked after the collision. In answer to a question, he said:
Obviously I didn’t see what was on my left but I was – looked to the right cause I definitely seen a sign and it’s not a stop sign. Maybe in hindsight with the road going like that it might have become a stop sign but it’s a give way sign. I thought ‘Oh there’s miles that way’, and then I thought I looked and then I just got my nose across the intersection sort of and stop.
Later in the interview he said:
Well I remember seeing a give way sign and well yeah and then bang.
The appellant was taken to hospital after the accident. He suffers from diabetes. He had recently been medicating with insulin. At the hospital, his blood sugar level was elevated, as was his blood pressure. That was something that was not unusual, given that he had suffered some shock and trauma in the accident.
There was evidence of Dr Guha, who is the Director of Diabetic Services at the Royal Adelaide Hospital. The effect of her evidence was that diabetics who take insulin can suffer a hypoglycaemic attack which is that their blood sugar level drops to an unacceptable low level. If that occurs, usually the person will be warned of the onset by symptoms, such as shakiness, wobbly legs, sweatiness, feelings of hollowness or, occasionally, visual blurring. If the person does not increase their sugar level by taking glucose or eating or drinking something to increase the blood sugar level, then the result can be loss of consciousness.
Mrs Shaw submits that one of the explanations, or a hypothesis to explain what occurred in this case, was that the appellant suffered some form of diabetic attack.
In summing up, the trial Judge summarised Dr Guha’s evidence. He directed the jury to her evidence that hypoglycaemia occurs when blood sugar levels become very low, and he directed the jury about the warning signs which a person will experience, or usually experience, if that occurs.
The appellant did not suggest that he experienced any of the warning signs. In his interview with the police he told them that he had been feeling well prior to the accident. The trial Judge left open the issue of whether it was a reasonable possibility that the appellant suffered some form of hypoglycaemic attack. The jury must have rejected that hypothesis. In my view, on the evidence as it was presented to the jury, it is not surprising that that hypothesis was rejected. It is mere speculation.
Mrs Shaw relies upon the decision of Bliss v R.[8] The facts of that case were as described by Mullighan J in his judgment:
The facts fall into a narrow compass. There was a road accident just after dark on 19^th May 1992 at the intersection of Whitehead Road and Punt Road at O.B. Flat near Mt. Gambier. The appellant was driving a Holden Gemini motor vehicle in a (sic} easterly direction along Whitehead Road. As she approached the intersection she was travelling at a relatively slow speed in second gear. The two roads intersected at right angles and there was a give way sign facing the appellant. A Mrs. Walsh was driving a Holden Commodore motor vehicle in a southerly direction along Punt Road. There were no other vehicles on either road. The appellant failed to yield right of way to Mrs. Walsh and the two vehicles collided. Mrs. Walsh sustained serious bodily injury.[9]
[8] (1993) 173 LSJS 255.
[9] Ibid 258.
Mullighan J referred to the law. He said:
However, the law has long recognised the difference between mere inadvertence or negligence which is an ordinary risk of using the road and conduct which is plainly blameworthy, i.e. driving in a manner dangerous to the public: The Queen v. Duncan (1953) 11 SASR 592 per Napier CJ at p.593; The Queen v. Mayne (1975) 11 SASR 583 per Bray CJ at p.585 and McBride v. The Queen 1966) 116 CLR 44 per Barwick CJ at pp.50-51. As Bray CJ pointed out in The Queen v. Mayne (supra) at p.585:-
“By empowering the jury to acquit of causing death by dangerous driving and to convict of driving without due care or attention, it [Parliament] must have contemplated that not all departures from due care and attention, even if they cause death, are necessarily to be classified as dangerous within the meaning of s.14.”
The existing legislation, ss.19a and 19b are in similar terms to the former ss.14 and 14a of the Criminal Law Consolidation Act. Of course, the quality of being dangerous to the public in the manner of driving does not depend upon the resultant damage or injury: McBride v. The Queen (supra) per Barwick CJ at p.50.[10]
[10] Ibid 263.
Mullighan J then referred to the driving of the appellant and concluded that the only complaint that could be levelled against the appellant was that her look out was defective. He concluded that the evidence in the case did not establish that her conduct went beyond negligence or inadvertence such as to constitute driving without due care. Duggan J agreed. Bollen J also agreed. He said:
…The appellant approached this intersection at a slow speed. Visibility was restricted there. She should have been the more vigilant. She should have seen the lights of the stand on vehicle. She did not. She carried on. She was at fault. Her look out was poor. But that conduct, applying the directions of Napier CJ, was no more than “careless driving”.[11]
[11] Ibid 257.
The decision in Bliss illustrates that each case turns upon its own facts.
In this case, there was a failure to keep a proper look out, but it was not solely that. That failure must be considered, having regard to the surrounding circumstances. In this case, the weather was good, there was no obstruction interfering with the view of the appellant, there was nothing that caused the appellant to have a restricted view, there were no trees, the road was flat, and there were no other impairments to the view.
Clow and Stringer, who were travelling along Port Broughton Road could see the appellant clearly. They did not see the truck slow down. I do not regard the difference between the speed of the truck estimated by them and the appellant’s estimate of his speed as significant. In my view, the difference is accounted for by the margin of error which necessarily attends such estimates and the natural variations in cruising speeds over the course of a journey. Their testimony and the very fact, and nature, of the collision establish that the appellant did not slow down prior to his vehicle entering the intersection.
It was a combination of these factors on which it was open to the jury to conclude that the appellant drove in a manner dangerous to the public. The verdict does not leave in my mind a concern that there is a possibility that the appellant was wrongly convicted.
In many respects, this was an unfortunate case. The appellant had an impeccable driving record. He is of impeccable character. However, all these matters were left to the jury. This is not a case where it is open to conclude that the verdict of the jury was unsafe or unreasonable.
Proposed Ground 4
The appellant seeks leave to rely upon a further ground of appeal, namely, that the Judge erred in failing to give a circumstantial evidence direction and to identify the evidence in respect of which that direction applied. In my view, this was not a circumstantial evidence case. This was a case in which the jury had to weigh up the evidence. If, on the whole of the evidence, it was a reasonable possibility that the cause, or a contributing cause, of this accident were factors such as, for example, that the appellant had a hypoglycaemic attack, or that the reason he did not see the Daewoo was because it was a similar colour to the trees behind it and, at the speed it was travelling, it could have been easy to not see it, or there were any other reasons other than the failure of the appellant to keep a proper look out, then it would have been open to the jury to acquit.
All the possibilities were put to the jury. The directions upon onus of proof made it clear that, before the jury could convict, they must be satisfied beyond reasonable doubt that the elements of the offence had been proved. They must reject all reasonable possible explanations.
In my view, this was not a circumstantial evidence case and did not require any further direction other than those given by the trial Judge.
I would reject the application to add Ground 4, as I do not consider it to be reasonably arguable as a separate ground of appeal.
Ground 2
Defence counsel in his address told the jury that mechanisms exist to correct errors of law made by the trial Judge “but if you get it wrong, it can’t be fixed and the whole thing has just been a complete waste of time and there has not been a fair trial” The Judge directed the jury:
… However, he also said that if you get it wrong there is no mechanism to rectify your mistake and that, ladies and gentlemen, is simply not correct. There is a mechanism available to correct jury verdicts even if the judge has not made any mistakes, so I direct you to disregard that suggestion of Mr Retalic’s and to simply evaluate the evidence and determine the outcome of the charge in accordance with the direction I have given you and if you do so you can be comfortable with your verdict, no matter what it might be, and you can rest assured that there are mechanisms available to correct any perceptible risks of miscarriages of justice of any kind.
The direction was correct. The very fact that a ground of appeal exists that a verdict is unreasonable and cannot be supported by the evidence establishes that a jury verdict can be overturned without any error of the trial Judge.
No argument was put to us supporting the application. However, counsel did not withdraw their application from the notice of appeal. I would refuse permission to appeal.
As to Ground 2, I would refuse permission to appeal.
As to the proposed Ground 4, I would refuse permission to add that ground.
As to Grounds 1 and 3, I would dismiss the appeal.
VANSTONE J: I agree with the orders proposed by Sulan J and with his reasons.
KOURAKIS J. I would dismiss the appeal. I agree with the reasons of Sulan J.
I would dismiss the appeal on Ground 1 for an additional reason. In my view, the critical distinction between driving without due care and driving in a manner dangerous is that the latter involves a lack of care and attention which transcends the ordinary risks of the road, which include risks arising from a degree of negligent driving.[12]
[12] Jiminez v The Queen (1992) 173 CLR 572 at 579; Kamleh v The Queen (1990) 51 A Crim R 435 at 437.
It is important to understand that the factual finding that the manner of driving is dangerous is an evaluative one. Like a finding of negligence itself, in a civil or criminal context, it is a normative judgment, made on the particular facts of the case, that the conduct is culpable. The verdict of the jury that the driving is dangerous is a judgment that the manner of driving is not a risk of the road which the community it represents finds acceptable.
When the special nature of the factual finding is kept in mind, the statements in the authorities, that the reasonable person in the circumstances of the accused must have appreciated that the driving was dangerous, in the sense that it created a serious risk of injury to the public, can be properly understood. The “reasonable person” is the personification of the community standard to which I have referred. The reference to the reasonable person in the position of the accused allows the subjective circumstances of the driver, which may not be apparent to other road users, like intoxication, vision impairment and drowsiness, to be taken into account.
Such is the nature of motor vehicles that any negligent driving will create a substantial risk of serious injury in the purely factual sense. That fact is evident from the many cases heard by the courts of this State in their civil and criminal jurisdictions. Indeed, it is a notorious fact of which the public are constantly reminded in road safety campaigns. The direction that the driving must be dangerous and pose a serious risk of injury to the public is an elaboration of the critical direction, which is that the driving must go beyond the ordinary risks of the road. It is not an additional element, it is an aspect of the single test. It has been consistently so treated in the authorities.[13]
[13] Kamleh v The Queen (1990) 51 A Crim R 435 at 437; R v Hendriksen (2007) 98 SASR 571 at [49]; R v Coventry [1938] SASR 79 at 86; R v Mayne (1975) 11 SASR 583 at 585; R v Duncan (1953) 11 SASR 592.
In my view, there was no misdirection in this case in any of the impugned passages of the summing up. There was certainly no misdirection in the summing up read as a whole.

[2011] SASCFC 65

19 July 2011

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