SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SABET
[2018] SASCFC 18
Judgment of The Court of Criminal Appeal
(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Hinton)
15 March 2018
CRIMINAL LAW - EVIDENCE - OPINION EVIDENCE - EXPERT OPINION
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES
Appeal against conviction for causing death by dangerous driving following trial by Judge alone.
The appellant was the driver of a motor vehicle that collided with a pedestrian on Port Road at Hindmarsh on 6 December 2014, causing his death. The deceased pedestrian, who was significantly intoxicated, was crossing Port Road at the time of the collision. The collision occurred with sufficient force to traumatically amputate his right leg at the ankle and hip.
At trial evidence was given by various eyewitnesses and two crash reconstruction experts, namely Senior Sergeant Kuchenmeister and Mr England.
The prosecution case was that the appellant drove dangerously due to high speed and inattention. The central issue at trial was the speed at which the appellant was driving, which informed the finding that in the circumstances the appellant’s failure to see the deceased pedestrian until very shortly before the collision was due to gross inattention. The relevant speed limit was 60 kilometres per hour. The Judge found the appellant was driving in excess of 80 kilometres per hour at the time of the collision, a finding based upon an intermediate finding of fact that the deceased became airborne consequent upon the collision, the evidence of eyewitnesses and rejection of the appellant’s evidence on this topic. The finding that the deceased became airborne was critical to the Judge’s acceptance of Sergeant Kuchenmeister’s evidence on the appellant’s speed.
At issue on appeal is the adequacy of the Judge’s reasons for critical findings, whether sufficient regard was had to the expert opinion evidence and whether the Judge misdirected herself as to the application of the burden of proof.
Held:
1. As to grounds 1 and 2:
Per Blue and Hinton JJ: No error of law is established that the Judge’s reasons were inadequate to explain the basis upon which she found that the deceased’s body became airborne as a result of the collision. Mr England was unable to explain why on his theory there was no biological material on the bonnet of the vehicle and disclaimed expertise in the movement of blood or other biological material. In these circumstances the Judge was not required to factor in the expert evidence to her assessment of the lay evidence. The Judge’s reasons were adequate to explain her treatment of the lay evidence.
Per Stanley J (dissenting):
The Judge’s reasons were inadequate to…
Continue reading R v Sabet
Sign in free to access the full text
- AGLC
- R v Sabet [2018] SASCFC 18
- Case
- [2018] SASCFC 18
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the trial judge had adequately addressed expert opinion evidence, specifically the opinion of Mr England regarding the speed of the appellant's vehicle. The court also considered whether the verdict was unreasonable or insupportable having regard to the evidence, and whether there had been a miscarriage of justice due to misdirection or non-direction by the trial judge. The application of the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) was also implicitly relevant, concerning whether a substantial miscarriage of justice had occurred.
Stanley J, in his reasons, addressed the expert opinion evidence. He concluded that Mr England's opinion as to speed should be rejected as not representing a reasonable possibility, given the overwhelming eyewitness evidence that the victim's body had passed over the roof of the car. The absence of blood or biological material on the car's roof or rear tyre cover was not considered sufficient to doubt the eyewitness accounts. The court found that the eyewitness evidence proved beyond reasonable doubt that the victim's body became airborne due to the collision, and that Mr England's opinion lacked the necessary evidentiary foundation. Consequently, it was not a reasonable possibility that the appellant's vehicle was travelling at a speed slower than the conservative estimate of 83-98 kilometres per hour. The court determined that the collision and the victim's death were proven beyond reasonable doubt to be caused by the appellant's excessive speed and grossly inattentive lookout.
Hinton J agreed with Stanley J's judgment and his treatment of the principles concerning a judge's duty to give reasons in a trial without a jury. Both judges emphasised the importance of adequate reasons for a verdict to enable an appellate court to determine whether the relevant rules of law have been correctly applied and to assess whether a miscarriage of justice has occurred. The appeal was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.