R v Pillar - [2017] SASC 76

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v PILLAR
[2017] SASC 76
Reasons for Decision of The Honourable Justice Peek
8 June 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES
Application for permission to appeal against conviction.
The applicant was convicted by a jury of causing death by dangerous driving. The sole issue at trial was whether the prosecution could negate beyond reasonable doubt the possibility that the applicant had suffered an involuntary coughing seizure just before the collision, and that he was not performing the voluntary act of driving at the relevant time.
By a notice of appeal dated 20 April 2017, the applicant sought permission to appeal solely on the basis that "the learned trial Judge erred in her directions to the jury on the question of voluntariness".
At the permission to appeal hearing on 8 June 2017, counsel for the applicant handed up an amended notice of appeal, reciting the single ground of appeal but below it setting out three particulars.
Held per Peek J (refusing permission to appeal):
(1) The ground of appeal does not fall within s 352(1)(a) of the Criminal Law Consolidation Act 1935 so as to constitute an appeal as of right, as it does not involve a question of law alone.
(2) The particulars of the ground of appeal, taken singly or cumulatively, do not provide content such that the ground of appeal is reasonably arguable.
Criminal Law Consolidation Act 1935 ss 19A, 352(1)(a), referred to.
R v Harris (1996) 65 SASR 428, discussed.
R v Vaughan (No 2) (2009) 105 SASR 532, considered.

R v PILLAR
[2017] SASC 76
Criminal
PEEK J.

The applicant was convicted by unanimous jury verdict of the charge of causing death by dangerous driving contrary to s 19A of the Criminal Law Consolidation Act 1935.
The uncontested facts were that the applicant was seated in the driver’s seat of a truck and had been driving it immediately prior to it veering over the centre line to the wrong side of the road and then colliding with a car driven by Ms Dowdell (the collision episode). Ms Thornton, the applicant’s domestic partner, was at all times sitting in the front passenger seat of the truck.
The collision episode is alleged by the prosecution to coincide with the period of driving alleged to constitute the actus reus of the charge.
Shortly after the collision episode, the applicant stated to Mr Nelson, one of the first members of the public on the scene, that he could not remember what had happened but that Ms Thornton had told him that he had had a coughing fit and had blacked out (to be referred to as an involuntary coughing seizure).
Neither the applicant nor Ms Thornton gave evidence at trial. The applicant’s defence at trial was that the prosecution could not negate beyond reasonable doubt the possibility that he had suffered an involuntary coughing seizure just before the collision episode with the result that he was not, at the relevant time, performing a voluntary act of driving the truck.
The prosecution did not dispute the premise that the applicant was to be acquitted if the prosecution could not negate the possibility that the relevant driving had been involuntary. However, the prosecution relied on a good deal of evidence, which is adequately summarised by the Judge in her summing up, to demonstrate that the suggestion of an involuntary coughing seizure was a sham devised by the applicant and that the collision occurred when the applicant was driving the truck in a conscious and voluntary state, but without paying proper attention such that he allowed the truck to deviate across the centre line, thus causing the collision.
The prosecution evidence included expert analysis of the crash site; recorded telephone conversations involving the applicant while in custody, the most notable being one between the applicant and Ms Thornton; medical evidence going to the likelihood of the applicant’s asserted involuntary coughing seizure; eyewitness evidence of the manner in which the applicant was driving in the lead up to the collision episode; and witness testimony as to Ms Thornton’s demeanour following the collision episode and her lack of recollection as to the applicant’s asserted involuntary coughing seizure until sometime later.
On 20 April 2017, the applicant filed a notice of appeal against conviction. The sole ground of appeal was as follows:
The Learned trial Judge erred in her directions to the jury on the question of voluntariness. (Jury directions pages 8-10).
On 17 May 2017, Mr Vadasz was notified by email that the matter was listed for the permission to appeal hearing on Monday 22 May 2017. Late on Friday 19 May 2017 Mr Vadasz sent an email stating that he was not available on Monday 22 May 2017 and requested an adjournment.
On Monday 22 May 2017, Mr Graham appeared for the applicant and requested an adjournment. The prosecutor did not oppose that application but pointed out the lack of specificity in the ground of appeal and also requested confirmation that there were no further additional grounds of appeal. The application was adjourned until Monday 5 June 2017, and I ordered that the applicant notify both the Court and the prosecutor as to whether any further proposed grounds of appeal were to be added by 4pm on Thursday 1 June 2017.
On 23 May 2017,Mr Vadasz was notified by the Court that the 5 June 2017 hearing date had to be vacated. The application was further adjourned until Thursday 8 June 2017 when both counsel were available.
On Tuesday 6 June 2017 Mr Vadasz sent an email to the Court stating “I confirm that I will not be adding any additional ground of appeal”.
On Wednesday 7 June 2017 Mr Petracarro sent an email to the Court and to Mr Vadasz in effect submitting that the application should not proceed further until the applicant provided particulars of the alleged error of David DCJ “in her directions to the jury on the question of voluntariness”. The prosecution was entirely justified in taking that stance. In R v Harris, Cox J stated:[1]
All grounds of appeal in criminal matters must be so drafted as to identify adequately the point that the appellant will seek to argue and enable the other side to prepare its answer. In short, grounds of appeal must include reasonable particulars in order to achieve that purpose.
Form 1 of the Supreme Court Criminal Appeal Rules 1990 (SA) makes that quite plain with respect to appeals against conviction. In setting out the form for such appeals, whether they need leave or not, the rules require that: “The grounds of appeal must be particularized and reference is to be made to the page numbers of relevant passages in the evidence and summing up.” I have said that the purpose of requiring that sort of particularity is to assist the respondent to prepare its case, but the function of particulars is wider than that. The Rules provide, for instance, that the trial judge may make a report to the Full Court on the matters raised in the appeal, and unless the judge can identify the point that the appellant is seeking to make he will be hampered in fulfilling that function.
We all know too well, from experience, that instances do occur in the Full Court of points being argued on appeals against conviction of which the other side has not had adequate notice, so that the court is faced with an undesirable choice between proceeding with a hearing in which the argument may, for want of notice, be incomplete, or else taking the unsatisfactory course of adjourning the matter. Furthermore, it assists the Full Court in the orderly discharge of its business if members of the court can see in advance what points an appellant proposes to argue. So it will be seen that there is more than one reason for requiring reasonable particularity in the statement of grounds for appeal.
[1] (1996) 65 SASR 428, 428-429.
On Thursday 8 June 2017 the hearing resumed before me. Mr Vadasz handed up a document entitled “Amended Notice of Appeal Against Conviction”. It recited the original ground of appeal but added the following particulars:
It was an error to merely describe a voluntary act as a “willed act” without any further direction as to the meaning of a willed act in the context of the case.
The Learned trial Judge did not provide the jury with a clear direction that the act of driving a vehicle when not conscious was an involuntary act.
Failed to direct the jury that a voluntary act imports a consciousness in the actor of the nature of the act and a choice to do an act of that nature.
In the course of argument it became quite clear that analysis of the ground of appeal required detailed reference to the evidence and to the facts of the case in that the applicant was complaining about asserted failures of the Judge to properly sum up on the facts and relate the defence of involuntariness to such a factual analysis.
It is quite clear, and Mr Vadasz conceded as much during the argument, that the ground of appeal does not “involve a question of law alone” within the meaning of s 352(1)(a)(i) of the Criminal Law Consolidation Act 1935 and accordingly the applicant does not have an appeal as of right. I consider that this is so whether one adopts the approach of either the majority or the minority in R v Vaughan (No 2).[2]The fact that Mr Vadasz did not at any stage attempt to refer, or provide a single reference, to any authority concerning the legal concept of involuntariness only further confirms that the ground does not involve a question of law alone.
[2] (2009) 105 SASR 532.
I therefore need to consider whether I should grant permission to appeal. I am firmly of the view that I should not for the following reasons.
In my view the summing up of the Judge in the area complained of was both correct and favourable to the applicant. No application for any additional directions or redirections was made at trial.
At pages 8 to 9 of the summing up her Honour directed thus:
So members of the jury, this leads me to the third element: the prosecution must prove beyond reasonable doubt that at the time the accused was driving his vehicle dangerously, his driving was a voluntary act. Members of the jury, as you know, this is the central issue in dispute in this trial. Let me now give you some directions of what ‘voluntary’ means in this context. The act of driving must be a voluntary and deliberate act of a person before an accused person can be held criminally responsible for the consequences of that driving. An act is a voluntary and deliberate act if it is a willed act of the person accused of committing the offence.
The prosecution must prove beyond reasonable doubt that the driving of the accused, Mr Pillar, upon which it relies as dangerous and causing the death of the victim, was a voluntary act in that it was a willed act on the part of the accused. You need to be satisfied beyond reasonable doubt that the accused’s driving was a willed act for it to be a voluntary act and for this element of the offence to be proved.
Here, the accused raised the issue of whether the prosecution has proved beyond reasonable doubt that his act of driving was a voluntary act. The accused raised this issue when speaking with the ambulance officer, Mr Harvie, at the scene of the collision, when he said that he had a coughing fit and found himself waking up on the other side of the road. The accused raised this issue in his statements in the ambulance and at the hospital and during his record of interview in saying that he could not remember the collision but he was told by Ms Thornton, his passenger, that he had a coughing fit and blacked out. The accused also relies on the medical evidence to say that the prosecution has not excluded as a reasonable possibility that his driving was involuntary, namely that in the months after the collision he was diagnosed as suffering from airways disease or hypersensitivity pneumonitis, of which coughing is a symptom.
The accused also relies on the evidence of Dr Makonahalli, a neurologist, who saw him lose consciousness or black out this year and who could not rule out that the blackout was genuine.
Members of the jury, it is for the prosecution to prove beyond reasonable doubt that the accused’s act of driving in a manner dangerous to the public, causing the death of the victim, was a voluntary act. If you consider that the prosecution has failed to exclude the reasonable possibility that the accused’s driving was involuntary, you must find the accused, Mr Pillar, not guilty. As this is the central issue in dispute in this trial, I will turn in more detail shortly to the evidence upon which the prosecution relies to prove the accused’s driving was voluntary, and I will detail the defence criticisms of that evidence.
Before I leave this element I need to make two matters abundantly clear to you: firstly, whether you are prepared to draw an inference beyond reasonable doubt from all of the surrounding circumstances that the accused's act of driving onto the wrong side of the road and colliding with Mrs Dowdell’s vehicle was voluntary, is entirely a matter for you. This is a factual matter that you, as the jury, must decide.
Secondly, before you can draw such an inference from the circumstances surrounding the commission of the offence, it must be the only rational explanation. If there is any other hypothesis or explanation for the evidence consistent with the accused’s innocence, namely that he had a coughing fit and lost consciousness immediately before the collision, resulting in his driving not being a willed act, then the accused must be given the benefit of the doubt and be found not guilty.
Members of the jury, the defence case to you is that the prosecution has not established beyond reasonable doubt that the accused’s driving was voluntary and, if you consider that to be a reasonable possibility, then the prosecution will have necessarily failed to have proved the third element of the charge and the accused must be acquitted.
Later at page 10 her Honour directed:
So members of the jury, by way of summary, these are the four elements of the charged offence: the dispute in this trial really rests with whether the prosecution has proved beyond reasonable doubt the third element, that the accused was voluntarily driving the vehicle in a manner dangerous to the public at the time of the collision. To put it another way, the contentious issue is whether you are satisfied beyond reasonable doubt that the accused was driving voluntarily when he drifted into the oncoming lane and collided with Mrs Dowdell’s vehicle and whether you can exclude as a reasonable possibility that at the time of this driving he was having a coughing fit and/or lost consciousness so that his driving was involuntary.
So members of the jury, with those key issues in mind, I will now deal with the facts. I will not go through the facts to the same extent as counsel. I do not think that would be a fruitful exercise from your point of view but it is important that I point out the key points made by the prosecution on the one hand and the defence on the other. Let me begin by outlining the evidence led in support of the prosecution case and in particular the contentious issue of voluntariness.
Her Honour then proceeded to summarise the evidence in a fair and comprehensive manner. I have considered that factual and expert evidence as I am required to do so by reason of the fact that the ground of appeal raises questions of mixed law and fact. However, there is no need to further recite evidential matters.
Conclusion
I conclude that the three particulars of the ground of appeal, taken singly or cumulatively, do not provide content such that the ground of appeal is reasonably arguable.
As to the first particular, there were ample and correct directions concerning the meaning of a willed act in the summing up.
As to the second particular, a general dissertation on involuntariness as applied to “driving” in general was not required. What was required was an accurate summing up as to the obligation of the prosecution in the present case to negate beyond reasonable doubt the possibility that there was no voluntary act of driving during the collision episode due to an involuntary coughing seizure. It is clear that the Judge provided such directions.
As to the third particular, Mr Vadasz appeared to submit that to establish this charge the prosecution had to prove that the defendant appreciated that there was a choice between two types of conduct and chose to perform the conduct which is relied upon to prove the charge. This argument is entirely misconceived and I see no reasonable argument that could be advanced in support of this particular.
Disposition
I conclude that the ground of appeal is not reasonably arguable. I dismiss the application for permission to appeal.