R v Sabet

Case [2018] SASCFC 18

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 explain the basis upon which she found that the deceased’s body became airborne as a result of the collision.  Her reasons do not address the evidence of Mr England concerning the absence of blood or biological material on the roof of the vehicle or the rear tyre cover.  This evidence is significant because it cast doubt on the reliability of the eyewitness evidence on which the Judge relied, in accepting the opinion of Sergeant Kuchenmeister and rejecting, as a reasonable possibility, the opinion of Mr England as to the speed of the appellant’s vehicle.  The Judge’s reasons failed to address this evidence which potentially was significant to the ultimate finding as to speed.  It was necessary for the judge to address it.  This constituted an error of law.

2.  As to grounds 3, 4 and 5:

Per Stanley J (Blue and Hinton JJ agreeing):

Permission to appeal refused.

3.  As to ground 6:

Per Stanley J (Blue and Hinton JJ agreeing):  The Judge found the appellant untruthful in a number of respects.  She found his evidence was not credible or reliable because he gave evidence of previous driving which, in the circumstances, she found incredible.  The Judge reasoned to that conclusion on the basis of commensense and the sheer implausibility of the appellant’s evidence.  In considering all the evidence the Judge excluded the appellant’s version of events as being reasonably possible and provided adequate reasons for so doing.  Further, the Judge provided sufficient reasons for finding the appellant’s vehicle caused the deceased’s death.  Had the Judge said nothing more than the failure to observe a pedestrian who was on a reasonably lit roadway for somewhere between six and eight seconds constitutes gross inattention, that would have been sufficient.  The submission that it was reasonably possible that a prudent or inattentive but not dangerous driver in the appellant’s position could not have avoided the collision is a hypothetical that was not required to be addressed. 

4.  Appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 353; Juries Act 1927 (SA) s 7, referred to.
R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Douglass v R (2012) 86 ALJR 1086; R v Power (2003) 141 A Crim R 203; Bugg v Day (1949) 79 CLR 442, considered.

R v SABET
[2018] SASCFC 18

Court of Criminal Appeal:  Blue, Stanley and Hinton JJ

BLUE J:

  1. This is an appeal against a conviction for causing death by dangerous driving.[1]

    [1]    Criminal Law Consolidation Act 1935 (SA) subsection 19A(1).

  2. The background, reasons for judgment of the trial Judge, evidence, issues and arguments on appeal are summarised in the reasons of Stanley J as supplemented by the reasons of Hinton J.

  3. I agree with Stanley J for the reasons given by his Honour that ground 6 should be rejected and permission to appeal should be refused on ground 5.

  4. I agree with Stanley J for the reasons given by his Honour that permission to appeal should be refused on grounds 3 and 4 and with the additional analysis by Hinton J of the evidence of the eyewitnesses whose evidence is the subject of these two grounds.

  5. In relation to the adequacy of the trial Judge’s reasons in respect of Mr England’s evidence the subject of grounds 1 and 2, I agree with the conclusion of Hinton J that there is no error of law by reason of inadequacy of reasons in respect of Mr England’s evidence but prefer to give my own brief reasons for that conclusion. For this purpose I rely on the summary of the relevant expert and lay evidence given by Hinton J.

  6. The essence of the appellant’s contention that the Judge’s reasons were inadequate in respect of Mr England’s evidence is that, before accepting beyond reasonable doubt that the deceased’s body passed over the roof of the vehicle based on acceptance of the evidence of the lay witnesses upon whom the Judge relied, the Judge was first required to factor in the expert opinion expressed by Mr England about the possibility that the deceased’s body was carried along on the bonnet before falling to the road in front of the vehicle. The appellant contends that the Judge was required to make a holistic assessment based on all of the evidence, both of the eyewitnesses and the expert opinions, and the Judge’s reasons are inadequate to the extent that they do not demonstrate that the Judge took into consideration Mr England’s opinion. The appellant does not contend that it was not open to the Judge to be satisfied beyond reasonable doubt that the deceased’s body passed over the roof of the vehicle having regard to the whole of the evidence.

  7. It may be accepted as a general proposition that, where there is direct evidence that if accepted proves a fact in issue and also circumstantial evidence having probative value pointing against or raising a doubt about the existence of that fact in issue, a trier of fact is required to weigh all of the evidence together before reaching a conclusion. It may be accepted as a general proposition that if in these circumstances the reasons of a trial judge do not indicate that the judge weighed all of the evidence together before reaching a conclusion, the reasons will ordinarily be inadequate. However, both propositions critically depend upon the circumstantial evidence having probative value.

  8. In their evidence, both Sergeant Kuchenmeister and Mr England accepted that no biological material emanating from the deceased was found on either the bonnet or the roof of the appellant’s vehicle.

  9. Mr England in his evidence in chief relied critically on the absence of biological material on the roof as the foundation on which to infer that the deceased’s body might have been carried along on the bonnet for one to one and a half seconds and then fell to the road in front of the vehicle (the defence hypothesis) rather than passing over the roof of the vehicle and falling to the ground behind the vehicle (the prosecution hypothesis). In cross-examination it was put to Mr England that this reasoning was illogical because no biological material was found on the bonnet; if the absence of biological material on the roof indicated that the body had not passed transiently over the roof, the absence of biological material on the bonnet would be a much more powerful indication that the body had not been carried on the bonnet for more than one second. Mr England was unable to give any explanation for the inconsistency in his logic.

  10. More importantly, Mr England gave as his reason for being unable to provide an explanation that he had no expertise in relation to blood spray or the movement of blood or other biological material from the human body. He explicitly accepted in answer to a question by the Judge that it followed that he was unable to say that if the body had passed over the roof (in accordance with the prosecution hypothesis) there would be any expectation of biological material being found on the roof.

  11. In light of the matters referred to in the previous three paragraphs, the opinion expressed by Mr England that the deceased’s body might have been carried along on the bonnet before falling to the road in front of the vehicle had no probative value. Mr England accepted in cross-examination that, if the deceased was accurately observed by eyewitnesses to fly into the air higher than the roof, that would exclude the defence hypothesis.

  12. In the circumstances, it was open to the Judge to accept the evidence of the eyewitnesses upon whom the Judge relied without first having to factor in the opinion that had been expressed by Mr England. The Judge was not required in the reasons for judgment to further address Mr England’s evidence beyond what her Honour said about it.

  13. Grounds 1 and 2 should be rejected.

  14. I would refuse permission to appeal on grounds 3, 4 and 5. I would dismiss the appeal.

    STANLEY J:

    Introduction

  15. This is an appeal against conviction.

  16. The appellant was found guilty of causing death by dangerous driving after a trial by judge alone.  The appellant was the driver of a motor vehicle which collided with a pedestrian on Port Road at Hindmarsh near the T-junction of Mary Street and Port Road, causing his death.  The collision occurred in the early hours of 6 December 2014 outside the Lady Daly Hotel.  At that point Port Road consists of a parking lane, a bicycle lane and three lanes for vehicular traffic travelling in either direction separated by a wide median strip.  The speed limit is 60 kilometres per hour. 

  17. The appellant’s vehicle was travelling away from the city in a north-westerly direction.  He drove along Port Road past the Entertainment Centre.  The deceased pedestrian was crossing Port Road from the corner of Port Road and Mary Street outside the Lady Daly Hotel, walking towards the median strip.  The judge found the victim was significantly intoxicated.  The collision occurred in the right-hand lane adjacent to the median strip.  The collision occurred with sufficient force to traumatically amputate the pedestrian’s right leg at the ankle and hip.

  18. 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.  This in turn informed the finding that in the circumstances the appellant’s failure to see the victim until very shortly before the collision was due to his gross inattention.  At trial there was evidence from a number of eyewitnesses.  They were variously in a Hyundai travelling behind the appellant’s vehicle on Port Road, outside the Entertainment Centre, outside the Lady Daly Hotel, in the median strip car park and on the other side of Port Road.  In addition, there was evidence from two crash reconstruction experts, Senior Sergeant Kuchenmeister and Mr England, who gave differing opinions as to speed. 

    The judge’s critical findings relevant to the issues on appeal

  19. The judge found that the appellant was travelling in excess of 80 kilometres per hour at the time of the collision.  This finding was based upon an intermediate finding of fact that the deceased became airborne consequent upon the collision, the evidence of eyewitnesses and the rejection of the appellant’s evidence on this topic. 

  20. The judge’s finding that the deceased became airborne was critical to the finding concerning the speed of the appellant’s vehicle at the time of the collision. 

  21. The appellant submits that the judge gave insufficient reasons for critical findings, namely, whether the deceased’s body became airborne after impact, the treatment of the eyewitness’ estimates of speed, the rejection of the appellant’s evidence as to speed, and the finding that the appellant failed to maintain a proper look out.

    Grounds of appeal

  22. There are six grounds set out in the notice of appeal.  They are:

    1.The learned trial judge erred in failing to give adequate reasons for her decision.

    2.Alternatively in relation to ground 1, the trial judge failed to correctly apply or in having any or sufficient regard to the expert opinions of Mr England in relation to the collision, in particular:

    2.1    in finding that the deceased’s body became airborne after the collision;

    2.2    in her factual findings as to the deceased’s movements and the accused’s manner of driving.

    3.Alternatively as to ground 1, the judge erred in failing to have any or adequate regard to the evidence of the witnesses who were in conflict with the prosecution case, in relation to the speed of the accused’s vehicle as it passed the Entertainment Centre up to the accident (for example Nicholas Zoccali, Terry Santucci and Brett Gogler). 

    4. Alternatively as to ground 1, the judge erred in failing to adequately analyse the evidence of the eyewitnesses having regard to the contents of the CCTV Exhibit P12 before determining that their observations were “very consistent”.

    5. The judge erred as a matter of law in relying upon the type of vehicle the accused was driving in order to reject his evidence that he had never driven over 85km/hour, inter alia, in that:

    5.1    the judge erred in adopting prohibited propensity reasoning;

    5.2    in the absence of evidence that the accused had previously driven over 85km/hr, it was not open to reject his evidence in order to find that in fact he had.

    6. The judge misdirected herself as to the application of the burden of proof in her approach to her findings, including:

    6.1    her rejection of the accused’s evidence; and

    6.2    proof of causation.

  23. Permission has been granted on grounds 1, 2 and 6.  The appellant has requested that his application for permission on grounds 3, 4 and 5 be referred to this Court.

    Grounds 1 and 2

  24. It is convenient first to address grounds 1 and 2.  They can be addressed together. 

    Adequate reasons

  25. A trial judge sitting without a jury is under an obligation to provide adequate reasons for his or her verdict.[2]  What constitutes adequate reasons is to be determined upon the facts of the case at hand.  The failure to give adequate reasons is an error of law.  In AK v Western Australia[3] the High Court considered the obligation on a trial judge when giving reasons for verdict in a trial by judge alone. The High Court was concerned with a statutory obligation that in a criminal trial by judge alone the judgment must include the principles of law that the judge applies and the findings of fact on which the judge relies, unlike the position in this State where s 7 of the Juries Act 1927 (SA) provides for the trial of an accused by a judge alone but does not impose any particular obligation in relation to the provision of reasons. However, the obligation of a judge sitting alone in this State to provide reasons has been made clear in a series of decisions of this Court.[4]    In my view the different statutory context in AK v Western Australia does not make the High Court’s consideration of the nature and extent of the obligation to provide reasons distinguishable from the obligation that is imposed on a trial judge sitting alone in this State.  I am reinforced in this view by the High Court’s reasons in Douglass v R,[5] on an appeal from this Court, that it was common ground that there is an obligation on a judge on a trial by judge alone pursuant to s 7 of the Juries Act 1927 (SA) to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied.

  26. In their joint reasons in AK v Western Australia, Gummow and Hayne JJ said:[6]

    Section 120(2) requires that the judge’s reasons include the principles of law that he or she has applied. The principles of law that are relevant will be identified by reference to the issues in the case.  Usually, then, a trial judge will be obliged to identify and record in the reasons what are the elements of the offence in question and which of those elements were in issue. Resolution of the issues in the case will then require not only statement in the reasons of both the principles of law that are applied and the findings of fact the judge makes, but also statement of “the reasoning process linking them and justifying the [findings of fact] and, ultimately, the verdict that is reached”.

    [Footnote omitted.]

    [6] [2008] HCA 8 at [44], (2008) 232 CLR 438 at 453.

  27. Heydon J said:[7]

    … It is common ground between the parties in the Court of Appeal and in this Court, and among the judges in the Court of Appeal, that the trial judge failed to comply with s 120(2) of the Criminal Procedure Act. The failure was almost as complete a failure as could be imagined, for apart from stating that the complainant was “generally a thoughtful and truthful witness”, noting the absence of prompt complaint, recording his conclusion that the events she described took place, and recording that the appellant was responsible for them, he said nothing more about any findings of fact he relied on. The appellant submitted correctly that the obligation created by s 120(2) is not “satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict”. It is clear from the trial judge’s interventions in argument that he was attracted towards a particular reasoning process; the problem is that he did not state it in his judgment. In the circumstances it is not necessary to elaborate on the various ways in which the trial judge might have fulfilled the s 120(2) obligation, beyond the following. Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed. Here the trial judge did not isolate, in particular, the issue of whether the accused was the offender, did not record the arguments of the parties on that question, and did not record the analysis of the complainant’s evidence which must have underlain his conclusion that the appellant was the offender. The statement that the “complainant was generally a thoughtful and truthful witness” did not carry out these functions, particularly because of the form of her evidence, which averred certainty of belief without testifying to any grounds for that belief and which in turn prevented the trial judge from finding any…

    [Footnotes omitted.]

    [7] [2008] HCA 8 at [85], (2008) 232 CLR 438 at 467-468.

  1. Gleeson CJ and Kiefel J, who were in dissent, said:[8]

    Section 120(2) of the Criminal Procedure Act provides that the judgment of the judge in a trial by judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied. The effect of such a statutory requirement was considered by this Court in Fleming v The Queen. All the members of the Court of Appeal agreed that the trial judge did not state his reasons for rejecting the appellant’s arguments on identification. That he considered such arguments, and that he presented counsel, for comment, with substantial reasons why they may not be accepted, appears from the record of his exchanges with counsel in the course of address. However, such exchanges do not form part of a statement of the reasons for decision, and, in his stated reasons, the judge simply did not address the arguments of counsel at any level either of specificity or generality. He may well have thought that it was a fairly hopeless point, but it was seriously put and was not entirely lacking in substance. It was not sufficient to point out its weaknesses in the course of address; it had to be dealt with (although not necessarily at great length) in the reasons for decision. There being a question of identification raised, the judge was obliged to say why, and how, he resolved it in favour of the prosecution.

    [Footnote omitted.]

    [8] [2008] HCA 8 at [16], (2008) 232 CLR 438 at 445-446.

  2. Those statements of principle in AK v Western Australia were affirmed and applied by this Court in R v Cotton[9]  and again in R v Ricciardi.[10]The matters upon which reasons are required and the extent of those reasons, will vary depending on the issues and the evidence in the case.[11]  It can be seen that the obligation imposed on the trial judge extended to a requirement that the judge identify the critical factual issues relevant to her verdict, identify the evidence relevant to the resolution of each issue and explain the process of reasoning by which the issue was resolved.  However, a minute explanation of each step in the reasoning process and detailed findings on every issue of fact is not required.[12]  There is no obligation on a judge to refer to every argument which has been put.[13]  A trial judge is entitled to make a finding that a particular witness’ evidence is rejected, without identifying, or indeed without there being any particular reason for rejecting the witness’ version over and above acceptance of conflicting evidence.  It is not essential that any specific shortcomings in the witness’ evidence be identified.  Where a decision rests on a matter of impression, there is no requirement for the judge to elaborate upon his or her reasons for decision.[14]  There will be cases in which little can be given by way of explanation.[15] 

    [12]   R v Keyte [2000] SASC 382 at [48] and [54], (2000) 78 SASR 68 at 78-80.

    [13]   R v Power [2003] SASC 77 at [76], (2003) 141 A Crim R 203 at 212.

    [14]   R v Power [2003] SASC 77 at [59], (2003) 141 A Crim R 203 at 210-211; R v Beard [2004] SASC 411 at [13].

    [15]   R v Power [2003] SASC 77 at [64], (2003) 141 A Crim R 203 at 211.

  3. At trial there were there were three matters in issue:

    (i)Did the deceased’s body become airborne and travel over the top of the appellant’s car as a result of the collision;

    (ii)Were the eyewitness accounts as to acceleration and speed reliable given the evidence of the appellant and the expert evidence of Sergeant Kuchenmeister and Mr England; and

    (iii)Was there evidence of the appellant’s inattention prior to the collision with the deceased?

    The finding as to speed

  4. At trial there were a number of eyewitnesses who gave evidence as to their estimates of the speed at which the appellant’s vehicle was travelling immediately prior to the collision.  In addition the prosecution and the appellant each called an expert who gave evidence, based on reconstruction, as to the speed of the appellant’s vehicle.  The prosecution called Senior Sergeant Kuchenmeister and the accused called Mr England.  In addition, the appellant gave evidence as to his speed. 

  5. The evidence of the eyewitnesses differed as to whether the deceased’s body became airborne and was thrown over the appellant’s vehicle as a result of the collision.  The experts also differed in relation to this issue.  Their estimate of speed depended upon an assumption described as the “fall height”.  The issue of the fall height depended on whether the victim’s body became airborne or was carried for some distance on the bonnet of the appellant’s vehicle.  Both experts accepted one another’s arithmetic calculations in arriving at an opinion as to speed.  The only area of dispute between them was whether the deceased became airborne or travelled for some distance on the bonnet before sliding off. 

  6. Sergeant Kuchenmeister gave evidence-in-chief that the physical evidence was consistent with the deceased being wrapped around the front of the appellant’s vehicle, travelling through the air to the point of impact with Port Road and sliding to a rest position.  The physical evidence was consistent with the deceased attaining a greater height than the roof of the car.  The evidence was that the roof of the appellant’s vehicle was at a height of 1.4 metres.  He employed what is known as the Hague equation for estimating the speed of the vehicle.  There were four relevant inputs to that equation, namely, the distance the pedestrian skids on the surface of the road, which in his case he found to be 29 metres, the co-efficient of friction, the height from which the pedestrian’s centre of mass falls, which was above two metres, and the correction factor, i.e. the proportion of the vehicle’s speed obtained by the pedestrian upon impact.  Using this equation he arrived at an estimate of a speed in the range of 83 to 114 kilometres per hour.  In cross-examination he denied that it would be unusual for there to be no biological material on the roof of the vehicle if the deceased’s body had passed over it but could not explain why.  He agreed that applying a correction factor of 100 per cent and a lower fall height of 0.8 to 1 metre in the Hague equation calculation would result in an estimate of the speed of the appellant’s vehicle in the range of 71 to 84 kilometres per hour.

  7. Mr England gave evidence that he believed the collision to be a fender vault because the deceased left the vehicle from its side and not over the top.  He concluded that the deceased remained on the bonnet of the vehicle for some 30 metres until the beginning of his body sliding onto Port Road.  He formed this opinion because of the lack of blood on the roof or rear tyre cover of the vehicle.  He considered that the deceased remained on the bonnet of the vehicle for one to one and a half seconds.  On the assumption that the deceased had remained on the bonnet and fallen off, he used a fall height of 0.8 to 1 metre based on measurements he had made of the vehicle.  He employed the Hague equation but did not use a correction factor because he considered the deceased would have achieved the same speed as the vehicle given that he was on the bonnet of the vehicle for a period of one to one and a half seconds.  Employing the Hague equation he arrived at an estimate of the speed of the appellant’s vehicle in the range of 71 to 84 kilometres per hour.  Under cross-examination he conceded that if the deceased did become airborne and rotate through the air over the appellant’s vehicle a Hague fall height of anywhere near one metre could be excluded. 

  8. Accordingly, the competing evidence of the experts depended on two controversial variables in the Hague equation, being the fall height and the correction factor.  Both of these variables were dependent on the dynamics of the collision.  On Mr England’s approach the fall height was about the height of the bonnet of the car and there was no room for the application of a correction factor.  On Mr Kuchenmeister’s approach the deceased flew into the air immediately upon impact and passed over the appellant’s vehicle so the fall height was some two to three metres and the correction factor was 80 to 90 per cent as opposed to 100 per cent.  Both of those variables causes the estimate of speed using the Hague formula to be higher. 

  9. It can be seen that central to the judge’s verdict was the finding that the prosecution had proved beyond reasonable doubt that the appellant’s vehicle was travelling in excess of 80 kilometres per hour.  This finding depended not only upon the acceptance of Sergeant Kuchenmeister’s opinion but also upon the rejection of Mr England’s evidence as a reasonable possibility. 

  10. The judge dealt with this issue as follows:[16]

    [16] [2017] SADC 11 at [346]-[361].

    In order to assess whether the pedestrian’s actions alone caused his death or whether the manner of driving of the accused was a substantial contribution, it is necessary to consider all of the surrounding circumstances including the speed of the accused and the distance covered by the pedestrian prior to the collision.

    The Scene

    I am satisfied that the collision between the accused and the pedestrian occurred at approximately 12.24am on 6 December 2014. I am satisfied beyond reasonable doubt that the collision occurred at the position marked A on the scale plan drawn by Senior Constable Mather, exhibit P10. Further, I am satisfied that the measurements of the lanes on the north-west bound carriageway of Port Road adjacent to that point are as follows:

    ·the parking lane was 2.17m;

    ·the bike lane, 1.5m;

    ·the left lane, 3.05m;

    ·the centre lane, 3.5m; and

    ·the right lane, 4.16m.

    I am satisfied from viewing exhibit P12, that there were no vehicles on the road that obstructed the accused’s line of sight of the pedestrian crossing Port Road. I am satisfied that after the accused’s vehicle hit the pedestrian, the pedestrian’s body became airborne before landing at the commencement of point F1, 29.84m from point A, then slid for a distance of 29.33m to its resting place, being 59.13m north-west of point A. Further, I am satisfied that as a result of the collision, the deceased’s upper right leg was amputated and the lower right leg was further amputated.

    I base my finding of the body becoming airborne on the observations of the eyewitnesses to the collision. Mr Peel described the pedestrian as cartwheeling down the road and “hitting the deck”. Further, he described the pedestrian flying through the air, spinning end to end. Mr Gawlik described seeing a large object fly into the air, approximately 6-8ft and said it was higher than a car roof. Mr Santucci said he noticed an object flying into the air and parts of the object splitting. At that stage he realised it was a person. Mr Gogler did not see the body in the air but saw the body sliding along the ground, coming to a rest just in front of him. I find that at the time that Mr Gogler’s attention was drawn to this collision, the body of the pedestrian had already fallen on the ground. Mr Barnett described seeing a human form come out of the sunroof over the top of the car and then land on the road. Mr Ogier described seeing something fly 10ft into the air before landing on the ground. When he saw the “items” fall to the ground, he noticed that it was a leg and a torso. Mr Shields described seeing a car and parts of a person go past. He said the parts of the person were on the ground. The accused in his evidence, said that the pedestrian was on his car for a very short time and he did not see it again. He was therefore not in a position to say whether the body became airborne.

    I accept the evidence of the eyewitnesses that the body of Mr Chiappetta became airborne after impact.

    Whether the body flew through the air or not assists in determining the type of collision that occurred, and whether or not I should accept the evidence of Senior Sergeant Kuchenmeister beyond reasonable doubt on this point. The evidence of the experts was very complex in some respects, however, when findings of fact have been made about the issue of whether the body became airborne there is little dispute between them.

    As Mr England conceded in his evidence, if the body did fly through the air as is described by the witnesses then the collision could not have occurred as he has opined. The significance that follows from this finding is the speed that is estimated by the experts at the stage of the impact. The calculation by Senior Sergeant Kuchenmeister using the Hague equation is that the range of speed of the accused’s vehicle at the time of the impact is between 83-114km/h depending upon the variables that are used. The most conservative of his figures is a speed in a range of 83-98km/h.

    Both Mr England and Senior Sergeant Kuchenmeister base their evidence solely on the physical evidence that was available at the scene including the photographs and scale plans that were later produced. Neither have taken into account the very consistent observations of the eyewitnesses of the body becoming airborne before landing and sliding for a considerable distance. I find beyond reasonable doubt that the body did become airborne at least with its centre of mass above the motor vehicle driven by the accused and that the accused’s motor vehicle then, in effect, continued under the airborne body, travelling ahead of it as the body cartwheeled through the air before impacting the ground and sliding to its place of rest.

    In respect of the speed that the vehicle was travelling at the time of the impact, I have approached the estimates of the various witnesses with some caution. They all had the vehicle under observation for a very short period of time.  The eyewitnesses to the collision saw what could only be described as a very traumatic event and the aftermath of the impact must have been horrific. In order to properly put the eyewitness account evidence in context, it is necessary to consider what observations had been made of the accused’s motor vehicle as it travelled from the city to the point of impact.

    The occupants of the Hyundai i30 being driven by Mr Georgiou, witnessed the accused’s vehicle travelling from the intersection of West Terrace and North Terrace to the point of impact. Not all the passengers paid much heed to the motor vehicle. As young people, they were occupied with social media, talking and chatting about the day they had had at a music concert. The most observant of them, perhaps not surprisingly, was the driver of the vehicle. The effect of his evidence is that he observed the accused’s car from a standing start at the North Terrace and West Terrace intersection. He noticed the car take off much quicker than him. The car then accelerated to the point that he lost sight of the car, and just after the intersection of Port Road and Park Terrace, he observed the car to skip, perhaps consistent with a hard acceleration.

    I find that the accused drove his car during the period that he was under observation by Mr Georgiou until the area just outside the Entertainment Centre in a manner that drew attention to him, perhaps a little faster than the speed limit, but not in a way that could be described as dangerous driving. It is of course noteworthy that he was driving a noticeable car, being a canary yellow Holden HSV with significant modifications and a very loud exhaust. These features alone would cause other road users to notice his motor vehicle.

    The observations that were made by Mr Hanna and Mr Reardon, outside the Entertainment Centre, are of a different nature and consistent with the observations of Mr Georgiou at that point.  Mr Hanna and Mr Reardon had been consuming alcohol. It is well known that the consumption of alcohol can affect a person’s reliability. It may affect their recollection, it may also affect their perception at the time. I am, however, satisfied beyond reasonable doubt that the observations of both Mr Reardon and Mr Hanna, were not affected by excessive alcohol or intoxication.

    Both men describe noise coming from the motor vehicle driven by the accused. Mr Reardon described it as being like it was under “full load or full throttle and it appeared to be travelling at twice the speed limit. It was driving in the right hand lane.” Mr Hanna described the vehicle as accelerating heavily, he thought “his foot was to the floor” and estimated the speed at about 100km/h. Both men are experienced drivers, Mr Hanna is a police officer and Mr Reardon has a particular interest in cars. I accept both witnesses as reliable and credible witnesses in respect of their observations of the accused’s car.

    Mr Gawlik estimated the speed of the car to be at least 100km/h. Mr Santucci, who has an interest in V8 cars, estimated the speed to be approximately 80km/h, Mr Gogler described the car as travelling at speed but coasting while not under power and said that the car was probably travelling 70km/h, Mr Barnett said the car was travelling well in excess of the speed limit, above 80km/h and went so far to say it could have been up to 100km/h. Mr Ogier estimated the speed to be between 80-90km/h. Each of the witnesses able to estimate the speed, estimated a speed well in excess of the speed limit.

    The accused gave evidence that he was driving at about 60-70km/h, was not doing anything remarkable at the time and had not accelerated harshly outside the Entertainment Centre. I do not accept the evidence of the accused in relation to these matters as being even reasonably possibly true. The accused has given evidence that is consistent in many respects with what he said to the police and the 000 operator. However, I find that he was untruthful in a number of respects. I do not accept his evidence that he has not driven this vehicle at fast speeds in the past or that he has not road tested the performance of this vehicle. He has made very expensive modifications to this car. It is a high performance vehicle. It is manufactured to be such a vehicle for people with an interest in high performance vehicles. I accept the evidence of Mr McDonald in this regard.  The accused’s evidence that he has never driven over 85km/h is rejected. I find this to be an example of how he has tried to downplay his actions.

    I accept the evidence of Mr Hanna and Mr Reardon that as the accused passed the Entertainment Centre, he accelerated harshly, drawing attention to himself and his car, and at that time he was in the right-hand lane. I make this finding notwithstanding that the exhaust modifications on this motor vehicle result in the vehicle being very loud and perhaps to some extent, affecting perceptions as to the speed of the motor vehicle. The evidence is that the vehicle was travelling at a higher speed than the speed limit and significantly so. It is consistently observed by those who were present and is consistent with the evidence of Senior Sergeant Kuchenmeister based on the Hague calculation. I am satisfied beyond reasonable doubt that the accused accelerated harshly outside the Entertainment Centre and was travelling in excess of 80km/h at the time of the collision.

  11. The judge’s reasons disclose that she found the deceased’s body became airborne after impact relying solely upon the evidence of eyewitnesses, without reference to Mr England’s opinion that the absence of biological material on the roof of the car was inconsistent with Sergeant Kuchenmeister’s opinion that the victim’s body had become airborne and been thrown over the car as a result of the collision.  This was critical to his assumption of the fall height upon which the calculation of speed depended.  The judge reasoned that in light of her finding, based solely on the eyewitness evidence, that the deceased’s body had become airborne as a result of the impact, Sergeant Kuchenmeister’s evidence as to the speed of the vehicle, namely, between 83 and 114 kilometres per hour, was to be accepted.  Further, the judge reasoned that while the eyewitness estimates of the appellant’s speed were to be treated with caution, each of them estimated a speed well in excess of the speed limit, and, accordingly, for all these reasons the appellant’s evidence that he was driving at 60 to 70 kilometres per hour was rejected. 

  1. However, while the difference in the opinions of the experts as to the speed at which the appellant’s vehicle was travelling at the time of collision can be resolved by a finding that the victim’s body became airborne, the evidence as to whether this occurred, was not confined to the eyewitness evidence upon which the judge appears to have exclusively relied in deciding this question.  Mr England’s opinion that the victim’s body did not become airborne was based on primary evidence of his examination of the appellant’s vehicle and his observation of the absence of blood on the roof or rear tyre cover in circumstances where the collision had caused the traumatic amputation of the victim’s right leg.

  2. The reasons of the judge fail to address the factual issue of whether the absence of blood on the roof or rear tyre cover is inconsistent with the evidence of those eyewitnesses who described seeing the victim’s body becoming airborne, so as to call into question the reliability of the eyewitness evidence the judge accepted. 

  3. This is critical because, if the victim’s body did not become airborne, the assumption upon which Sergeant Kuchenmeister’s opinion as to the speed of the appellant’s vehicle depends, is undermined.  If that evidence is undermined then the judge’s finding as to speed, which relied exclusively upon Sergeant Kuchenmeister’s evidence, is also undermined. 

  4. In this context the appellant submits that the eyewitness evidence in relation to whether the victim became airborne was not unequivocal.  While the judge in her reasons relied upon the evidence of certain eyewitnesses, namely, Mr Peel, Mr Gawlik, Mr Santucci, Mr Gogler, Mr Barnett, Mr Ogier and Mr Shields, some of that evidence was at least open to question, equivocal or arguably inconsistent with other eyewitness evidence to which the judge did not refer.

  5. For example, Mr Peel who saw the deceased “cartwheeling” through the air was wrong as to the direction the deceased was crossing the road.  Mr Ogier who said he saw “something” fly 10 feet in the air and when it fell to the ground noticed it was “a leg and a torso” had his back to the appellant’s vehicle as it approached the point of collision.  His evidence that he turned around to look for the car making the noise was contradicted by the CCTV footage from the Lady Daly Hotel.  In addition Mr Barnett, while describing the deceased going over the top of the vehicle, said he did not become airborne, and Mr Shields, whose evidence the judge relied on, said he saw a car and parts of a person go past and that the parts of the person were on the ground.  Further, the judge did not refer to the evidence of the three witnesses travelling in a car behind the appellant, namely, Chris Georgiou, Bill Georgiou and Vittorio Alfino.  None of these witnesses gave evidence of seeing a body being thrown over the appellant’s vehicle or becoming airborne.  Mr Chris Georgiou said he only saw debris and a leg after driving up closer to the collision.  Mr Bill Georgiou gave evidence of seeing body parts that were coming underneath the appellant’s vehicle.  Mr Alfino gave evidence of seeing what looked like a bumper in the air. 

  6. That is not to say, however, that the appellant’s criticisms of this evidence meant that the judge’s finding was not open.  It is obvious that when a very traumatic event, occurring in the matter of seconds, is witnessed by a number of people, they will recall different aspects of that event.  The failure of a witness to notice or recall something is not necessarily evidence it did not occur. 

  7. While it was open to the judge to make the finding that the victim’s body became airborne in reliance upon the eyewitness evidence, it was necessary for her to explain in her reasons the basis upon which she could make such a finding given the absence of blood on the roof and rear tyre cover.  She did not do so. 

  8. The absence of blood on the roof and rear tyre cover was primary evidence of a fact.  It was not merely an assumption upon which Mr England founded his opinion.  Of course, if the whole of the evidence did not support the factual finding that there was an absence of blood or other biological material on the vehicle’s roof and rear tyre cover, or that fact did not provide a sound basis for the opinion on which it was based, the judge was entitled to reject Mr England’s opinion as to the appellant’s speed as a reasonable possibility.  As I note, it was open to her to rely upon the eyewitness evidence as a basis for finding that the victim’s body became airborne, but in order to do so it was necessary for the judge to explain why she accepted the eyewitness evidence given Mr England’s evidence of his observations of the absence of blood on the roof and tyre cover.  Given the importance of the evidence as to speed to the judge’s verdict, it was necessary that her reasons addressed this issue. 

  9. I accept that there was available a basis upon which to reject Mr England’s opinion as to the significance of the absence of blood and other biological material on the car roof and rear tyre cover.  Notwithstanding Mr England’s opinion that post-impact the appellant’s motor vehicle had travelled for one to one and a half seconds with the victim’s body on the bonnet, there was no evidence of blood or other biological material to be found on the bonnet despite the victim’s leg having been amputated.  However, the judge failed to address the topic.  The appeal court cannot ascertain from a consideration of the judge’s reasons whether she might have dismissed Mr England’s opinion on that basis or whether she simply overlooked that aspect of his evidence.

  10. I do not accept the submission of Mr Press SC, counsel for the respondent, that the judge’s failure to address this aspect of Mr England’s opinion evidence was because Mr England had conceded that the absence of blood on the roof and tyre cover was of no forensic significance given the absence of blood on the bonnet. 

  11. In my view there are two answers to that submission.  First, it is inconsistent with the judge’s own reasons where she sets out those aspects of Mr England’s evidence as follows:[17]

    He said the lack of any blood or material over the roof on the vehicle was another factor that supported his finding and that if the body went over the roof soon after it was torn apart there would be material left on the roof… and it is significant that there is no debris whatsoever on the roof.

    [17] [2017] SADC 11 at [310]-[311].

  12. I do not consider that the judge had dismissed this evidence as being of no significance.  She certainly did not say so. 

  13. Second, it is not apparent from a consideration of the evidence given that Mr England conceded the absence of blood on the roof and tyre cover was of no forensic significance.  The relevant evidence given by Mr England is as follows:[18]

    Q.Is there anything that you could see on the bonnet that could account for the fact that the body was being carried with an obviously severe injury of an amputation of the entire leg on the bonnet of the car or the body of the car at all.  No smears of blood.

    A.I am obviously not an expert in relation to blood spray or – I mean I don’t know whether or how much the pedestrian would have been bleeding –

    Q.No one is asking you that –

    A.Therefore I clarify that by saying I don’t say how much debris or bodily fluid or pieces – biological pieces may be on the car.  I can’t say.

    Q.It follows from that, doesn’t it, if you can’t say you can’t say, that it should have been all over the roof of the car.

    A.Yes, I agree.

    [18]   T 457.1-16.

  14. Shortly thereafter the following evidence was given:[19]

    [19]   T 461.11-33.

    Q.And one explanation you would accept is possible for the lack of blood on the roof of this vehicle is that the deceased was above the vehicle but to the side of it.

    A.No, I don’t agree with that.

    Q.Of course, without going into too much detail, if blood was to fall from the pedestrian if he was airborne above the vehicle that blood as it falls moves backwards relative to the movement of the vehicle.

    HER HONOUR

    Q.Are you qualified to answer that.

    A.No, I’m not in relation to blood splatter. 

    XXN

    Q.In terms of the movement through the air, are you qualified –

    A.If the car – the car may be moving too quickly relative to the pedestrian for the blood to fall fast enough.

    Q.For example if there is a blood spray from an injury in front of the vehicle the vehicle can drive into that spray and be coated.

    A.Yes.

    Q.That’s something that you would have dealt with in your time.

    A.I mean I’ve seen plenty of blood spray from impacts.

  15. I do not consider that evidence indicates Mr England conceding that his observation of the lack of blood on the roof was not significant forensically.

  16. The appellant also submits that the judge erred in failing to have any or sufficient regard to the expert opinion of Mr England in her factual findings as to the deceased’s movements and the appellant’s manner of driving. 

  17. This ground relates to the judge’s finding in relation to inattention rather than speed.  The judge’s reasons for finding that the appellant was grossly inattentive are as follows:[20]

    Further, I find that the accused did not observe the pedestrian on the road until a very short time before impact. By that time the impact with the pedestrian was inevitable. I accept that there is a possibility the accused attempted to manoeuvre his car to the right to avoid the collision, but this manoeuvre would simply never have sufficed to avoid a collision at the late stage at which the accused saw him. In any event this manoeuvre has to have been so slight as to have resulted in his motor vehicle shifting slightly to the right, then back to the left within a short period of time. I make this finding on the basis that there is no evidence that his car connected with the right hand kerb.

    If the accused was travelling at a constant speed of 80km/h, his car was travelling at 22.2 m/s, at 90km/h, 25m/s. Based upon the calculations that have been provided by Mr England, and observing the movement of the pedestrian in P12, it is reasonable to consider that he covered 1.3m/s as he crossed Port Road. He walked 10.22m prior to impact, after stepping from the footpath. In that event, he was on the roadway for 7.9 secs prior to impact. This illustrates the point very clearly that even allowing for some error in relation to these calculations, at the time the pedestrian stepped from the footpath, the accused was in the vicinity just prior of the pedestrian lights near the Entertainment Centre probably having just commenced his fast acceleration as observed by Mr Reardon and Mr Hanna.

    I am not suggesting that these figures are entirely accurate, but rather illustrative of the scenario as it unfolded. If the accused’s vehicle was close to the pedestrian lights at the time when the pedestrian stepped off the footpath to cross the road, under ordinary circumstances, with a person travelling at 60km/h, the pedestrian would have had ample time cross the road. Similarly, the accused travelling at that speed would have had ample time to have made observations of the pedestrian crossing the road and take evasive action. Of course, the faster the accused was going, the further back he was at the time when the pedestrian stepped off the footpath.

    It is clear that the accused did not see the pedestrian at any stage whilst he was crossing the parking lane, the bike lane, the left lane or the centre lane of the road. The accused became aware of him when he was in front of his motor vehicle. One explanation proffered by the accused is that he was checking his blind spot. I do not accept that explanation. As I have said, I do not accept that the accused was in the centre lane moving to the right lane. I find that he was in the right lane when he went past the Entertainment Centre. However, even if he was changing lanes from the centre to the right lane, that manoeuvre had been completed by the time of the impact and there would be no reason for him to be checking his blind spot at that stage.

    His alternate explanation is that while driving on a multi lane road he only concentrates on his lane. If that is true it is very concerning. However, I do not accept that he, as an experienced driver, does not take into account what is happening around him at all. Nevertheless it may account for his gross lack of attention in these circumstances.

    The pedestrian was on the road to be seen for a considerable period of time in an area that was reasonably lit. The only explanation for the accused not seeing him until very shortly before the collision is his gross inattention.

    [20] [2017] SADC 11 at [362]-[367].

  18. It can be seen that the judge plainly had regard to the evidence of the deceased’s movements and the calculations made by Mr England.  While Mr England had given evidence about response times, that evidence was irrelevant because the appellant gave evidence that he did not see the deceased until it was too late for him to respond.  There were no braking marks prior to the collision.  The appellant gave evidence that when he first saw the deceased he could not see bitumen between the deceased and the front of his car.  Further, his evidence on this topic was irrelevant because the CCTV evidence shows that the deceased took, at least, six seconds to walk the 10.22 metres from the edge of the footpath to the point of impact.  The evidence of Mr England as to response time could not explain the appellant’s failure to see the deceased earlier.  That could only be explained by his inattention.  Finally, Mr England’s opinion relied wholly on an acceptance of the appellant’s version of his driving in the lead up to the collision.  Once the judge rejected the appellant’s version of events as a reasonable possibility, the evidence of perception and response times was immaterial. 

  19. For these reasons I reject the appellant’s submission that the judge failed to have sufficient regard to Mr England’s opinion in her findings as to the deceased’s movements and the appellant’s manner of driving but I accept the appellant’s submission that the judge’s reasons are inadequate to explain the basis upon which she found that the victim’s body became airborne as the result of the collision.  Her reasons do not address the evidence of Mr England concerning the absence of blood or biological material on the roof of the vehicle and the tyre cover.  This evidence was significant because it cast doubt on the reliability of the eyewitness evidence upon which the judge relied, in accepting the opinion of Sergeant Kuchenmeister and rejecting, as a reasonable possibility, the opinion of Mr England as to the speed of the appellant’s vehicle.  The judge’s reasons failed to address this evidence which potentially was significant to the ultimate finding as to speed.  It was necessary for the judge to address it.  This constituted an error of law. I will address the consequences of that error after considering the other grounds of appeal. 

    Ground 6

  20. The only other ground of appeal in respect of which permission was granted is ground 6.  Permission was granted to appeal on this ground on the basis that the permission judge considered that the ground was poorly worded and it was not correct to describe the ground of complaint as a submission that the judge misdirected herself as to the application of the burden of proof.  Rather, the real ground of appeal is that the judge failed to provide adequate reasons for her rejection of the appellant’s evidence and her finding that the prosecution had proved beyond reasonable doubt that the appellant’s dangerous driving had caused the victim’s death.

  21. As can be seen from the passage in the judge’s reasons referred to above at [37], the judge found that the appellant was untruthful in a number of respects.  She rejected his evidence that notwithstanding the very expensive modifications he had made to his vehicle to enhance its rate of acceleration, he had not driven the vehicle at fast speeds and had not road tested its performance.  The appellant had spent tens of thousands of dollars in modifying the vehicle.  Those modifications had occurred some months earlier.  He denied driving at speeds which are illegal.  The inference drawn was open on that evidence.  Contrary to the appellant’s submission, this is not propensity reasoning.  The judge did not find that because the appellant previously drove his vehicle at a speed in excess of 85 kilometres per hour that he was doing so on this occasion.  Rather, she found that his evidence was not credible or reliable because he gave evidence of previous driving which, in the circumstances, she found incredible.  It is apparent that the judge reasoned to this conclusion on the basis of common sense and the sheer implausibility of the appellant’s evidence. 

  22. Importantly, the judge rejected the appellant’s evidence of the circumstances of the collision, including his estimate of his speed being at about 60-70 kilometres per hour as a reasonable possibility on a consideration of all of the evidence, including, in particular, the evidence of Mr Hanna and Mr Reardon.  They were standing in front of the Entertainment Centre on Port Road at a place approximately 140 metres south-east of the point of impact.  Her Honour accepted both men as experienced drivers.  Mr Hanna is a police officer and Mr Reardon has a particular interest in cars.  While she acknowledged that they had been consuming alcohol, she was satisfied beyond reasonable doubt that this did not affect their observations which she found to be reliable and credible.  They gave evidence of the appellant’s vehicle accelerating heavily near the Entertainment Centre at a speed well in excess of 80 kilometres per hour.  The judge’s acceptance of this evidence was significant in her rejection of the appellant’s evidence that he had not accelerated harshly outside the Entertainment Centre and his estimate of his speed as being reasonably possible.  The judge’s reasoning was both open on the evidence and adequately explained.

  23. I do not accept the appellant’s submission that the judge’s reasoning was inconsistent with the evidence of other witnesses.  The first point to be made is that some caution must be exercised in relying upon estimates of speed by witnesses who are stationary and observing a vehicle drive past.  Second, the foundation for this submission is misplaced.  The appellant relies on the evidence of a number of eyewitnesses.  The appellant relies on the estimate made by Mr Gogler of a car probably travelling at 70 kilometres per hour.  But this could not be an estimate of the appellant’s vehicle at all but a vehicle travelling ahead of the appellant’s vehicle.  The car Mr Gogler refers to had passed his location and was 200 to 250 metres down Port Road beyond the Lady Daly Hotel when he heard the sound of a collision.  He then looked to his left and saw the deceased’s body sliding towards him on the road.  He described a car that looked similar subsequently returning to the scene, but this identification was not conclusive and cannot have been the appellant’s car.  The appellant also relies upon the evidence of Mr Zoccali who was a passenger in the Hyundai trailing the appellant’s vehicle on Port Road.  While Mr Zoccali gave evidence that the speed of the appellant’s vehicle and the vehicle in which he was a passenger was virtually identical, he was referring to a time before the Brewery intersection.  After the Brewery intersection he did not pay attention to the appellant’s vehicle until the car in which he was a passenger was near the Entertainment Centre.  He heard a massive bang in front of them.  He looked up and saw the appellant’s car about 100 metres ahead.  The evidence of the witnesses from the Hyundai who were paying varying degrees of attention to the appellant’s vehicle after the Brewery intersection, namely, Chris Georgiou, Bill Georgiou and Mr Alfino, was that it had accelerated ahead of their vehicle and was travelling well in excess of the speed limit.  Their evidence was consistent with the Crown case of rapid acceleration from the Brewery intersection.  At trial the appellant’s counsel sought to dismiss their evidence submitting they were distracted and not paying attention.  Mr Santucci observed the appellant’s vehicle from a position standing behind his car which was in the median strip car park across from the Lady Daly Hotel.  He gave evidence that the appellant’s vehicle was travelling at 80 kilometres per hour.  The judge appears to have accepted this evidence notwithstanding that he had provided a statement to the police in which he had estimated the speed at 70 or 80 kilometres per hour and agreed that at the time of impact the speed of the appellant’s vehicle could have been 80 kilometres per hour after brakes were applied.  It is clear the judge has not overlooked the existence of Mr Santucci’s prior statement or his concession it was possible that the appellant’s vehicle was travelling at 70 kilometres per hour at impact.[21]  Notwithstanding that concession it was open to the judge to accept his estimate of the speed of 80 kilometres per hour.  Mr Santucci’s evidence merely was one piece of evidence to be weighed with all the other evidence relevant to speed, including, in particular, the evidence of Sergeant Kuchenmeister.  

    [21] [2017] SADC 11 at [117].

  1. Further, I reject the appellant’s submission that Sergeant Kuchenmeister conceded that it was possible that the speed of the appellant’s vehicle could have been between 71 and 84 kilometres per hour.  His evidence in that regard merely accepted the accuracy of Mr England’s calculation on the premise that the fall height was no greater than one metre. 

  2. Ultimately, the question for the judge was whether in considering all of this evidence she could exclude the appellant’s version of events as being reasonably possible.  She did so.  In my view the judge has provided adequate reasons for her rejection of the appellant’s evidence as a reasonable possibility. 

  3. The appellant also submits that the judge has failed to provide adequate reasons for her finding that the appellant’s driving caused the deceased’s death. 

  4. The judge set out her reasons in the following passage which immediately succeeded the reasons set out in [55] above.  The judge said:[22]

    I am satisfied beyond reasonable doubt that this collision was caused as a result of the accused’s excessive speed and lack of attention as a road user at the relevant time. Further, I am satisfied that when the accused was going past the Entertainment Centre, he accelerated his car harshly, probably in an effort to show off to those who were on the footpath and in the general vicinity. I find that the accused was aware that there were pedestrians and other road users in and around Port Road at the relevant time emerging from entertainment and licenced venues. In those circumstances it was incumbent upon the accused to have exercised care and caution. I am satisfied beyond reasonable doubt that driving at such excessive speed and failing to make observations in respect of a pedestrian who was clearly on the roadway for some time prior to the point of impact, constitutes driving in a manner dangerous to the public. It is not momentary inadvertence, it is not an error of judgment, and it is not driving without due care and attention. It amounts to driving in a manner dangerous to the public as described in the authorities.

    In some circumstances the conduct of an intoxicated pedestrian may result in unpredictable behaviour on their part such that a motorist is unable to avoid a collision. This was not one of those cases. Whilst Mr Chiappetta was significantly intoxicated, his behaviour was both predictable and consistent. He stepped off the footpath to cross Port Road at a time when if the accused had been travelling at the speed limit, he would have been substantially closer to the pedestrian and in all likelihood the pedestrian would have perceived this. In all likelihood it was because the accused was travelling at excessive speed that the pedestrian has miscalculated his ability to cross the road safely at this point. I find beyond reasonable doubt that the accused’s manner of driving was a substantial cause of the death of Mr Chiappetta.

    [22] [2017] SADC 11 at [368]-[369].

  5. The appellant’s submissions on this topic, both in writing and orally, were brief.  In short, I understand the submission to be that the judge failed to adequately explain how her finding of gross inattention was causative of the collision and the death of the pedestrian.  That is, even if the appellant was grossly inattentive, might the collision have been inevitable equally for the prudent or inattentive, but not dangerous, driver in the appellant’s position.

  6. I do not accept this submission.  The reasons are adequate.  Had the judge said nothing more than the failure to observe a pedestrian who was on a reasonably lit roadway for somewhere between six and eight seconds constitutes gross inattention, that would have been sufficient.  In any event, inattention was not found to be the sole cause of the collision.  The faster the appellant was driving the greater his attention needed to be.  The submission that it was reasonably possible that a prudent or inattentive, but not dangerous, driver in the appellant’s position could not have avoided the collision is a hypothetical that the judge need not have addressed given her finding that the cause of the collision was not mere gross inattention but the combination of gross inattention and excessive speed. 

  7. While the appellant was critical of the judge’s finding that the section of Port Road where the collision occurred was not reasonably lit, that submission is contrary to the evidence of the CCTV footage outside the Lady Daly Hotel which clearly showed the victim as he walked across Port Road. 

  8. For these reasons I dismiss ground 6.

  9. I turn to address grounds 3, 4 and 5 for which permission to appeal has been refused.

    Grounds 3, 4 and 5

  10. I would refuse permission on each of these grounds.  I have addressed each of these grounds in considering grounds 1, 2 and 6.  It is unnecessary to repeat those reasons at length. 

  11. It is sufficient to note in relation to ground 3 that the judge did not fail to have regard to the evidence of the eyewitnesses in relation to the speed of the applicant’s vehicle as it passed the Entertainment Centre up to the point of collision. The premise of ground 3 is that there was conflict in the evidence of the eyewitnesses as to the fact of sudden acceleration by the appellant’s vehicle and that he was travelling at a speed of 80 kilometres per hour or more. The applicant specifically refers to the evidence of Mr Zoccali, Mr Santucci and Mr Gogler. I have addressed their evidence at [61]. The failure of some witnesses to give positive evidence of these matters does not lead to the conclusion that they are in conflict. It merely reflects the reality that witnesses will recall different aspects of an event that is viewed briefly and where the subject matter of their evidence is something as notoriously variable as the speed of a vehicle estimated by a stationary observer.

  12. On ground 4 the applicant submits that the judge erred in failing to have regard to the CCTV footage which is Exhibit P12 before deciding the eyewitness observations were “very consistent”.  This submission refers to the evidence of the eyewitnesses who were outside the Lady Daly Hotel, namely, Mr Peel, Mr Barnett, Mr Ogier and Mr Shields.  The evidence to which the judge referred is their evidence of the victim’s body becoming airborne.  Their evidence in this regard is consistent except for the evidence of Mr Shields.  While Mr Peel was wrong about the direction the victim was crossing the road, I do not consider that it is an insurmountable obstacle to accepting his evidence of what happened after the collision.  Having viewed for myself the CCTV footage I do not accept that Mr Ogier’s evidence that he turned around to look for the car making a noise was contradicted by the footage.  He does appear to turn his head to the left immediately prior to the collision.  Mr Barnett described seeing a human form come out of the sunroof over the top of the car and land on the road.  This evidence is unaffected by the CCTV footage.  While Mr Shields did not give evidence of seeing the victim pass over the roof of the car, his evidence is not inconsistent with that occurring.  His observations might have been made a second or so later.  In any event, his evidence is unaffected by viewing the CCTV footage.   Equally clearly, the judge did not overlook his evidence. 

  13. The evidence of the CCTV footage demonstrates that the victim was on the roadway, where he was capable of being observed by a reasonably attentive driver, for a period of between six and eight seconds, as he traversed the 10.22 metres to the point of impact.  The judge’s finding that the victim’s death was caused by the gross inattention and excessive speed of the applicant was amply supported by the evidence which excluded any other conclusion as a reasonable possibility. 

  14. I reject the applicant’s submission that the judge had accepted as a possibility that he had attempted to manoeuvre his car to the right to avoid the collision.  Rather, the relevant passage in the judge’s reasons[23] makes clear that she was addressing the applicant’s evidence that he was changing from the centre to the right lane and had looked over his shoulder to check his blind spot.  She rejected this evidence.  The judge found that the applicant was travelling in the right lane when he went past the Entertainment Centre.  The judge did not accept the applicant’s evidence of looking in his blind spot as a possibility.  The judge merely addressed why, if that had been so, it would not have explained his failure to have seen the victim on the roadway. 

    [23] [2017] SADC 11 at [364]-[367].

  15. On ground 5, for the reasons set out above, the judge did not engage in propensity reasoning in rejecting the applicant’s evidence that he had never driven his vehicle over 85 kilometres per hour.  That finding was available.  It was a finding as to the applicant’s credit.  The judge was not obliged to accept that evidence as the only evidence on the topic given its inherent implausibility. 

  16. I would refuse permission to appeal on grounds 3, 4 and 5.

    Consequences of the error of law

  17. For the reasons set out above I am satisfied that the judge erred in failing to provide adequate reasons to explain the basis upon which she found that the victim’s body became airborne as a result of the collision.  Specifically, the judge’s reasons do not address the evidence of Mr England concerning the absence of blood or biological material on the roof and the rear tyre cover of the appellant’s vehicle.  As I have observed, this constitutes an error of law.

  18. The conclusion that the judge committed an error of law requires that this Court allow the appeal unless the proviso applies.[24]  This Court can only apply the proviso if it considers that no substantial miscarriage of justice has actually occurred[25] notwithstanding its conclusion that by reason of the failure to provide adequate reasons the judge committed an error of law.  The task is an objective one to be undertaken on the whole of the record of the trial (including the judge’s reasons, paying proper regard to the issues that had to be determined in order to arrive at a verdict of guilt).  It is to be performed bearing in mind the natural limitations that exist in any appellate court proceeding wholly or substantially on the record and applying the criminal standard of proof.[26]  Some errors are so fundamental or involve such a departure from the essential requirements of a fair trial that they exclude the operation of the proviso, irrespective of the strength of the prosecution case, or the appellate court’s view as to the guilt of the accused.  Furthermore, the proviso cannot be applied where the error at trial denies or substantially frustrates the capacity of an appellate court to decide whether a conviction is just.[27]

    [25]   Criminal Law Consolidation Act 1935 (SA) s 353(1).

  19. In AK v Western Australia, the High Court upheld an appeal from a decision of the Court of Appeal of Western Australia to apply the proviso in a case of a trial by judge alone where the Court of Appeal found that the judge had failed to give adequate reasons for finding that it was the appellant who had committed a sexual offence where identification was the principal issue at trial.  All of the High Court were satisfied that the trial judge had committed an error of law by failing to provide adequate reasons for finding it was the appellant who had committed the offence.  The majority of Gummow, Hayne and Heydon JJ held that the Court of Appeal erred in applying the proviso in these circumstances.  Gleeson CJ and Kiefel J found no error in the application of the proviso.   The appeal was decided in the context of a statutory requirement on a judge in a trial by judge alone to include in his or her judgment the principles of law that had been applied and the findings of fact relied upon.  In their joint reasons Gummow and Hayne JJ said:[28]

    Once it is recognised that the Criminal Procedure Act requires that a trial by judge alone is to be concluded in this way, it is evident that to examine, as the Court of Appeal did, whether a chain of reasoning could be articulated that would support, even require, the verdict that was reached at trial was not to the point in deciding whether there was a substantial miscarriage of justice. It was not to the point because the relevant error or miscarriage which is the premise for consideration of the proviso is an error or miscarriage constituted by a failure to provide, as s 120(2) required, a reasoned decision about the central issue that was tried. The appellant was not tried in accordance with the requirements of s 120.

    [28] [2008] HCA 8 at [58], (2008) 232 CLR 438 at 457.

  20. Heydon J, in separate reasons, having upheld the conclusion of the Court of Appeal that the judge erred by contravening the statutory obligation to provide reasons, held that it was unnecessary to deal with the question of the application of the proviso because once there had been a failure to state reasons for making findings of fact in contravention of the statutory obligation, it was not permissible for the Court of Appeal to engage in a process of examining the whole record before applying the proviso.[29]  He said:[30]

    … There is no doubt that a miscarriage of justice can take place where its consequence is that “it is impossible for an appellate court to decide whether a conviction is just”. From that point of view the presence of a miscarriage of justice is much starker, because the absence of the factual findings in relation to the reasoning which led to the verdict made it hard to assess whether those aspects of the evidence underlying that reasoning rendered the conviction just. However, it is not necessary to decide whether the proposition on which the appellant relied – that the proviso could never be employed where the appellable error substantially frustrated the exercise of a convicted person’s appellable rights – is correct. The error in this case had that consequence, but that is simply a reflection of the seriousness of the failure to comply with s 120(2) and the importance of doing so.

    [Citation omitted.]

    [29] [2008] HCA 8 at [115], (2008) 232 CLR 438 at 485.

    [30] [2008] HCA 8 at [112], (2008) 232 CLR 438 at 483-484.

  21. The minority, Gleeson CJ and Kiefel J, in joint reasons, while not doubting that there would be cases in which a failure to give reasons would leave an appellate court in no position to apply the proviso, rejected the proposition that this was uniformly so and held that there are circumstances in which the application of the proviso is valid notwithstanding a failure on the part of a judge in a trial by judge alone to provide adequate reasons.[31] 

    [31] [2008] HCA 8 at [26], (2008) 232 CLR 438 at 449.

  22. It can be seen that the joint reasons of two of the judges comprising the majority, Gummow and Hayne JJ, and the joint reasons of the minority, Gleeson CJ and Kiefel J, support the proposition that there is scope for the application of the proviso where an appeal court has found that the reasons of a judge in a trial by judge alone are inadequate. 

    The proviso

  23. In this case I would apply the proviso.

  24. The absence of adequate reasons concern the foundation for an expert opinion.  This Court is not at any real disadvantage as against the trial judge in assessing that evidence.  As I have indicated, there was available a basis upon which to reject Mr England’s opinion as to the significance of the absence of blood and other biological material on the car roof and rear tyre cover.  Mr England’s opinion for his estimate of speed was based on the absence of blood and biological material on the roof.  He inferred that the victim’s body did not travel over the roof as a result of the collision based on the absence of blood on the roof and rear tyre cover.  Instead, he concluded that immediately following impact the victim’s body had lain on the bonnet of the car for a period of one to one and a half seconds while the car travelled some 30 metres.  Yet there was no evidence of blood or biological material on the bonnet.  This is despite the victim’s leg having been amputated.  Mr England was unable to explain the apparent contradiction.  To my mind this fundamentally undermines the major premise of Mr England’s reasoning upon which his estimate of speed was based, namely, that the fall height was no more than one metre, based on the inference that the victim’s body could not have passed over the roof of the vehicle so as to produce a greater fall height, given the absence of blood or biological material on the roof or rear tyre cover.  Accordingly, the absence of blood or biological material on the roof or rear tyre cover is of no forensic significance.  The lack of forensic significance of the absence of blood or biological material on the roof or rear tyre cover is reinforced by Mr England’s acknowledgment that this may have been explained by the car travelling so fast that it went underneath the body before any blood had the opportunity to fall onto it. 

  25. Accordingly, I am satisfied that the error of the judge in failing to provide adequate reasons on this discrete issue has not frustrated this Court’s capacity to discharge its appellate function.  Even allowing for the need to exercise caution when invoking the proviso in the context of error arising from the inadequacy of a trial judge’s reasons, I am satisfied on a review of the whole of the evidence that there has been no substantial miscarriage of justice in this case.  The appellant did not lose the possibility or chance of an acquittal that was fairly open to him by reason of the error of law that occurred.  This was not a case where any inadequacy in the trial judge’s reasons was so fundamental as to warrant a conclusion that there was a departure from the requirements of a fair trial, regardless of the strength of the prosecution case, or that this Court’s ability to determine whether the conviction was just has been frustrated. 

  26. The judge gave lengthy reasons for her findings.  Notwithstanding her failure to adequately address Mr England’s opinion, I am satisfied that his opinion as to speed should be rejected as a reasonable possibility having regard to the eyewitness evidence overwhelmingly in favour of the victim’s body having passed over the roof of the car following the collision.  I have addressed that eyewitness evidence earlier in these reasons.  The absence of blood and biological material on the roof of the car and rear tyre cover is no reason to doubt the eyewitness evidence.  That evidence proved beyond reasonable doubt that the victim’s body became airborne as a result of the collision.   Mr England’s opinion can be rejected as lacking the requisite evidentiary foundation.  It was not a reasonable possibility that the appellant’s vehicle was traveling at a speed slower than Sergeant Kuchenmeister’s most conservative estimate of 83-98 kilometres per hour.  It was proved beyond reasonable doubt that the collision and victim’s death was caused by the excessive speed and grossly inattentive lookout with which the appellant was driving his vehicle. 

    Conclusion

  27. I would refuse permission to appeal on grounds 3, 4 and 5 and dismiss the appeal.

    HINTON J:

  28. I have had the advantage of reading Stanley J’s judgment in draft for which I am grateful. I do not summarise the evidence in this case, nor the trial Judge’s reasons or arguments advanced on the hearing of the appeal save as is necessary to explain my reasoning.

  29. I agree with Stanley J’s treatment of the principles concerning the duty upon a judge sitting in a trial without a jury to give reasons and the extent of that duty.  In Douglass v The Queen French CJ, Hayne, Crennan, Kiefel and Bell JJ endorsed Doyle CJ’s explanation as to why a judge is required to give reasons for a verdict following a trial by judge alone.[32] In identifying why reasons must be given, what is required in order that reasons may be considered adequate is also revealed. Doyle CJ said:[33]

    If a judge sitting without a jury is not required to give any reasons, the CCA will have no ability to determine whether the judge has correctly applied the relevant rules of law. Absent reasons from the trial judge, the ability to correct a verdict affected by “a wrong decision on any question of law” will be confined to errors made in the course of the trial itself, and to situations in which it can be said that, as a matter of law, it was not open to the judge to convict. Cases in the latter category would be relatively rare. The absence of reasons will also mean that in those cases in which the correct use of the evidence is affected by rules of law, there will be no means of determining whether the judge identified and correctly applied the relevant rules. The absence of reasons would also mean that in cases in which the circumstances call for particular care, such as cases involving identification evidence, there will be no means of knowing whether and how the judge dealt with the matter requiring particular care. To a considerable extent, the CCA would be deprived of the ability to decide whether there has been a miscarriage of justice as a result of the manner in which the conclusion of guilt was reached. I do not suggest that this is a comprehensive survey of the matter, but the points that I have made are sufficient to indicate that if reasons are not required, the scrutiny of a trial by the CCA will be substantially contracted.

  1. For the same reasons it cannot be said that the trial Judge’s reasons are inadequate for failing to evaluate the eyewitness’ accounts of the deceased being vaulted into the air in the light of the evidence of an absence of biological material on the roof of the appellant’s vehicle.

  2. I do not consider that the conclusions I have reached amount to a reversal of the onus of proof. Where an hypothesis consistent with innocence is raised by the defence, the defence bears the onus of introducing enough evidence to suggest that it is a reasonable possibility.[51] In my view there was no evidence capable of supporting the intermediate inference with the consequence that it ceases to be a reasonable possibility and the foundation for the primary inference evaporates.

    [51]   Jayasena v The Queen [1970] AC 618 at 624.

  3. If I am wrong in this regard and consequently wrong in my conclusion that it was unnecessary for the trial Judge to address the intermediate inference relied upon in Mr England’s evidence, I agree with Stanley J for the reasons that he gives that the proviso should be applied. I would add, if, contrary to my view, there was some evidence capable of supporting the intermediate inference, that evidence, for the reasons given above,[52] was so lacking in force that it does not cause me to think that the inadequate reasons has frustrated this Court in the performance of the appellate task nor that a conviction was other than inevitable.

    [52] At [128].

  4. I turn to the evidence given by the eye-witnesses as to the fact of the deceased being vaulted into the air. The trial Judge summarised that evidence as follows:[53]

    I base my finding of the body becoming airborne on the observations of the eyewitnesses to the collision. Mr Peel described the pedestrian as cartwheeling down the road and “hitting the deck”. Further, he described the pedestrian flying through the air, spinning end to end. Mr Gawlik described seeing a large object fly into the air, approximately 6-8ft and said it was higher than a car roof. Mr Santucci said he noticed an object flying into the air and parts of the object splitting. At that stage he realised it was a person. Mr Gogler did not see the body in the air but saw the body sliding along the ground, coming to a rest just in front of him. I find that at the time that Mr Gogler’s attention was drawn to this collision, the body of the pedestrian had already fallen on the ground. Mr Barnett described seeing a human form come out of the sunroof over the top of the car and then land on the road. Mr Ogier described seeing something fly 10ft into the air before landing on the ground. When he saw the “items” fall to the ground, he noticed it was a leg and a torso. Mr Shields described seeing a car and parts of a person go past. He said the parts of the person were on the ground. The accused in his evidence, said that the pedestrian was on his car for a very short time and he did not see it again. He was therefore not in a position to say whether the body became airborne.

    I accept the evidence of the eyewitnesses that the body of Mr Chiappetta became airborne after impact.

    [53]   R v Sabet [2017] SADC 11 at [349]-[350].

  5. The appellant complains that in accepting the evidence of Messrs Peel, Gawlik, Santucci, Gogler, Barnett, Ogier and Shields the trial Judge did not evaluate the significance of fragilities in their evidence and failed to consider the evidence of Mr Christos Georgiou, his son, Mr Bill Georgiou and Mr Vitorio Alfino. It was added that the evidence of the Georgious and Messrs Barnett, Shields and Gogler was all consistent with Mr England’s hypothesis that the deceased was not vaulted into the air, whilst the evidence of Mr Gawlik and Mr Alfino could be considered equivocal. It was submitted that in the absence of reasons explaining why the Judge accepted the evidence set out in the passage quoted above, and why it was not reasonably possible that those witnesses whose evidence was not inconsistent with Mr England’s hypothesis (the Georgious and Messrs Barnett, Shields and Gogler) lacked reliability, it was not clear on what basis the Judge decided she could rely on Messrs Gawlik, Santucci, Gogler, Barnett, Ogier and Shields but not the Georgious and Mr Alfino. Accordingly, it was said that this Court could not be sure that the onus of proof had been correctly applied.

  6. Of Messrs Peel, Gawlik, Santucci, Gogler, Barnett, Ogier and Shields, the appellant contended that only the evidence of Mr Santucci did not suffer from “obvious reliability issues”. 

  7. Mr Peel had been drinking that night. He said he was mildly intoxicated when he left the Governor Hindmarsh Hotel to head to the Lady Daly Hotel. At the Lady Daly Hotel he and his three friends (Messrs Barnett, Ogier and Shields) stood at a table on the footpath outside the hotel abutting Port Road. They can be seen in the CCTV footage comprising exhibit P12. Mr Peel is seated with the roadway to his left and the hotel to his right looking up Port Road in the direction of the Entertainment Centre. He said he saw the deceased walking diagonally across Port Road as if he had come from the direction of the Governor Hindmarsh Hotel when the deceased was struck by the appellant’s vehicle. He said, “I saw the collision and I saw the guy cartwheel down the road and I saw him hit the deck down further.” He repeated, “… the car came through, hit him and then he cartwheeled, like end for end down the road. He went reasonably high, I couldn’t say exactly but I guessed about the height, at its peak, Stobie pole-type height, and he was flying through the air, I thought his bag was flying with him”. Mr Peel subsequently realised that it was not the deceased’s bag that he saw, but his leg.

  8. In cross-examination Mr Peel was taken through the CCTV footage the subject of exhibit P12. He was surprised to see that the pedestrian he saw hit had come from the western side of Port Road, the Governor Hindmarsh Hotel being on the eastern side. The following exchange occurred:

    A:Yeah, well I swore he was coming from the middle but I didn’t never – I did not know he was coming from that way.

    Q:We accept that but in terms of after the collision –

    A:Yeah.

    Q:- you’ve given evidence that he cartwheeled and was at its highest the top of the Stobie pole.

    A:Yeah.

    Q:Were the various parts of the car and also the pedestrian and things going –

    A:Yeah.

    Q:- in a lot of different directions, is that right.

    A:Yeah, he was cartwheeling end for end down the road and there was something going with him and I thought it was his bag, so I – immediately I, when I realised what had happened dropped my drink and ran down to pick it up the bag, and that’s when I saw it was a body part.

    Q:Parts of the car were also –

    A:Yeah, bits of the mirror and bits and pieces went all over the place.

  9. In bringing cross-examination to an end Counsel drew Mr Peel’s attention to a white vehicle featured in the CCTV footage. Mr Peel had no recollection of the vehicle. He said, “No. The only thing I remember is the collision and that’s it”.

  10. At no stage was Mr Peel’s recollection of the deceased being struck by the appellant’s car and cartwheeling down the road challenged. At no stage was his evidence of the height that the deceased reached challenged. That height may be thought exaggerated, but nothing in cross-examination or generally provided any reason not to accept the essence of Mr Peel’s evidence; that upon being struck the deceased was vaulted into the air, rotating until he fell onto the roadway. In light of this I do not think it can be said that the Judge’s reasons were inadequate in the treatment of Mr Peel’s evidence. That he thought the deceased came from the median strip did not mean that his memory of the collision was otherwise unreliable and nothing in his evidence suggested as much.

  11. At the material time Mr Gawlik was walking on the eastern side of Port Road in the direction of Port Adelaide. When he was in the region of DK Fabrics on the corner of Port Road and Drayton Street, his attention was drawn to the appellant’s vehicle when it was near the Entertainment Centre. He lost sight of the vehicle as it passed the Lady Daly Hotel. He then heard a very loud thud. He said he could see something fly up into the air but could not see what it was, although it was a large object that went “at least six feet, six to eight feet maybe” into the air and higher than the roof of the appellant’s vehicle. His evidence did not change in cross-examination.

  12. Mr Santucci was parked in the carpark that forms part of the median strip to Port Road and is across from the Lady Daly Hotel. As he returned to his car having been at the Governor Hindmarsh Hotel, his attention was drawn to the sound of the appellant’s vehicle. By this time he was in the car park. He said:

    I noticed that the car was heading on Port Road away from the city on the lane that was closest to the median strip and at the point of contact I noticed an object flying into the air. I noticed the object splitting, parts of object splitting, and at that stage I realised that it was a person. I then watched that person fly through the air and land on the ground.  …

  13. He said the body was vaulted possibly two to three metres above the roof of the vehicle and was spinning backwards almost in the opposite direction to part of a limb before landing on the ground. In cross-examination he said he saw two parts of the body – the main part and “some sort of limb”. He added that the body only slid a further 2m once it hit the ground. It was never suggested to him that he did not see the body “flying into the air” at a height above that of the appellant’s vehicle.

  14. Mr Gogler was parked in the same carpark as Mr Santucci facing the Lady Daly Hotel. He heard a bang that he considered sounded like a car crash. He looked to his left and saw the end of a few plastic parts hitting the road. His gaze then fixed on a body sliding down the road until it came to rest. The body was minus a leg from the hip. When he first saw the body, it was already on the roadway.

  15. Self-evidently Mr Gogler’s evidence could not assist with respect to how the deceased and the appellant’s vehicle parted. On anyone’s case, and as the trial Judge observed, Mr Gogler’s attention had to have been drawn to the collision once the deceased had fallen to the roadway.

  16. Mr Barnett was in the company of Messrs Peel, Ogier and Shields at the Lady Daly Hotel at the material time. He can be seen in the CCTV footage from the hotel, P12, sitting with his back to the traffic driving down Port Road in the direction of Port Adelaide. He heard a loud crash and turned to his right. He said:

    … I think I swore, I said “what the hell was that?” I saw vehicle debris exploding from the front of the car. I didn’t know if it was a bomb or what. The car kept going. That’s all I saw instantly, just bits of I don’t know what it was, bumper bar, mirror, glass, then wasn’t until further down the road, my guess, 30, 40m, I saw what looked like clothing sort of come out of the sunroof of the car, where I was that’s what it looked like, came out of the sunroof. Then I saw it was a human form which I instantly thought had come out of the sunroof somehow, I later know come (sic) over the top.

  17. Mr Barnett explained that when he first saw the “human form” it was on top of the car and was flipping. He said it he did not think it went too much higher than the roof of the vehicle. The vehicle was ahead of the “human form”.

  18. In cross-examination Mr Barnett made plain that he was not saying that the body actually came out of the sunroof, but that from his position it looked as if it had. The vehicle had travelled a further 40m down the road when he saw the body come over the top of it.

  19. Mr Barnett’s evidence was consistent with the deceased being vaulted into the air. It was never suggested to him that what he saw could not have been the deceased.

  20. Mr Ogier was sitting out the front of the Lady Daly Hotel with Messrs Peel, Barnett and Shields. He had his back to Port Road. Mr Barnett was to his left and Mr Peel, his right. He first saw the appellant’s vehicle when it was 30-40m away from the Lady Daly Hotel. The next thing Mr Ogier recalled was seeing something “fly up in the air”. By this time the vehicle was directly over his right shoulder. Initially he was not sure what it was that he saw fly up into the air. It rose “10 feet maybe”. Subsequently he could not say how high it went compared to the height of the vehicle. He only noticed what it was once he saw it hit the ground – it was a leg and a torso. He did not say that he saw the leg and torso in the air. He was not sure what he saw in the air. In cross-examination, after watching the CCTV footage, the following exchange occurred:

    Q:What I would be suggesting to you is what happened is that you heard the engine, you turned left to look, heard the thump and then turned right. Would that be what happened?

    A:I reckon that’s pretty right.

    Q:And that you then saw debris and the parts of the pedestrian going down the road.

    A:That’s correct.

  21. Mr Shields was the fourth member of the quartet drinking out front of the Lady Daly Hotel. He was facing Port Road with Mr Peel to his left and Mr Barnett to his right. He heard the sound of a crash just to his left. He looked up to see “part of a person and the car still going down the road”. They were to his left and they were on the road. Mr Shields’ evidence falls to be treated in the same way as Mr Gogler’s.

  22. Christos Georgiou was driving down Port Road in the same direction as the appellant. By the time he reached the intersection of Port Road and Adam Street he estimated the appellant was two hundred metres ahead of him and travelling faster than he was. He was driving at 60km/h. He did not give evidence of seeing the deceased and the appellant’s vehicle collide. Christos Georgiou’s evidence does not undermine the evidence of Messrs Peel, Gawlik, Gogler, Santucci, Ogier or Shields. It neither confirms nor negates the competing hypotheses regarding how the deceased departed from the appellant’s vehicle.

  23. Bill Georgiou was in the front passenger seat of the vehicle driven by his father, Christos. He gave evidence that as they were driving past the Entertainment Centre he could see the appellant’s car approximately 150-200m ahead. He said he saw “it collided with something, and then parts coming underneath the car”. Immediately before seeing the “parts” coming from underneath the car he had been looking at his mobile phone. He was never asked if the deceased vaulted over the roof of the appellant’s vehicle or whether he could further describe the “parts” that he saw. Bearing in mind that the deceased’s torso was ultimately some 59.13m further down Port Road from the point of impact, that his father stopped the vehicle in which they were travelling before they reached the “parts”, and that on anyone’s case the appellant’s vehicle did not run over the deceased, the “parts” Bill Georgiou saw come from underneath the car could not have been the deceased’s torso.

  24. Vittorio Alfino was also in Christos Georgiou’s vehicle. He was sitting in the back seat behind Christos. He gave evidence that not long after passing through the intersection of Port Road and Adam Street and before Mr Georgiou’s car had reached the Entertainment Centre, the appellant’s car took off in the right hand lane. He said he “then noticed something that was thrown up into the air and I thought to myself “Oh, hopefully that’s his bumper or something for driving like an idiot”.” He added that “[f]rom far it looked like something from his car, like I hardly expected it to be what it was”. He said that it was “remarkably high” and “much higher than the roof of the vehicle.” Once Mr Georgiou came to a stop Mr Alfino realised that it was a pedestrian that the appellant’s car had hit. Mr Alfino’s evidence is, therefore, consistent with Messrs Peel, Santucci and Barnett.

  25. For the sake of completeness, Messrs Kyriacou and Zoccali were also in Christos Georgiou’s car at the relevant time. Both gave evidence. Mr Kyriacou did not give any evidence regarding the collision between the deceased and the appellant’s vehicle. He was using his mobile telephone at the time. He only began to pay attention to what had happened once Mr Georgiou brought his vehicle to a stop. By this time the appellant’s vehicle had turned around and was driving back toward where the collision had occurred. Mr Zoccali was playing on his mobile telephone. He heard a massive bang and then looked up. He said he “didn’t actually see anything but once I looked up I saw what had happened.” By this time the appellant’s vehicle was about 100m ahead of Mr Georgiou’s vehicle. He gave no evidence on the issue of how the deceased’s body and the appellant’s vehicle parted after colliding.

  26. The passage taken from the trial Judge’s reasons and reproduced above commences with a statement of conclusion.[54] Thereafter the reasons are given for that conclusion, being an acceptance of the evidence identified. I understand the trial Judge to explain that it is the combined force of the evidence identified that has led her to the conclusion articulated.

    [54] At [136].

  27. From the above survey of the evidence of Messrs Peel, Santucci and Barnett it can be seen that nothing in the evidence suggested that their respective observations of the deceased being airborne should be doubted. Here it should not be overlooked that it is the combined force of the evidence that is relied upon. In those circumstances no greater analysis than that undertaken by the trial Judge was necessarily required in order that this Court be able to perform the appellate function. Nothing in the evidence of Christos and Bill Georgiou alters this. The evidence of Mr Alfino is only supportive.

  28. The same may be said of Mr Gawlik’s evidence. While he could only describe what he saw fly up into the air as a large object, he was not challenged in this regard. There was nothing in his evidence or otherwise that required any greater analysis of his evidence of what he did see. What he saw is taken with the evidence of the others in support of the Judge’s conclusion. In this respect it cannot be said that the Judge’s reasons are inadequate.

  29. The trial Judge’s treatment of Mr Ogier’s evidence requires separate mention. Mr Ogier did not firmly commit to seeing the deceased vaulted in the air. He was not sure what he saw in the air. It was never put to him that it could not possibly have been the deceased. His evidence leaves open the possibility that what he saw in the air was, as he said in evidence in chief, a leg and torso. The passage from Mr Ogier’s cross-examination quoted above[55] purports to summarise the effect of what he saw as “parts of the pedestrian going down the road”. In my view it was open to the trial Judge to accept what Mr Ogier described initially seeing as supportive of the conclusion at which she arrived when taken with the other evidence to which she referred – where Mr Ogier was uncertain, resort to the other evidence provided the Judge with the comfort necessary for her to accept that which Mr Ogier initially described seeing. That the Judge did not embark upon a detailed analysis of Mr Ogier’s evidence does not cause me to think that her reasons were inadequate such that this Court cannot determine whether or not the standard of proof has been properly applied. It is to be observed that the trial Judge stated that she was satisfied beyond reasonable doubt that the deceased became airborne,[56] indicating an understanding of the importance of the finding to the ultimate conclusion and an understanding of the applicable standard.[57]

    [55] At [152].

    [56]   R v Sabet [2017] SADC 11 at [350].

    [57]   It is not necessary to decide whether proof of the deceased being airborne was an indispensable link in the chain of reasoning to guilt.

  1. Again, nothing in the evidence of either Christos Georgiou or Bill Georgiou suggests that any greater analysis of Mr Ogier’s evidence was required.

  2. As for the evidence of Mr Gogler and Mr Shields, it was not established nor suggested that they had observed anything of the deceased’s movement prior to the deceased being on the roadway. Consequently, their observations are equally consistent with both hypotheses but of no assistance in resolving the question of whether the deceased became airborne. On that question, adequate reasons required no more, in my opinion, than a reference to the fact that the evidence of Mr Gogler and Mr Shields did not assist which, in effect, the trial Judge did.

  3. For the reasons given above, I do not think that the trial Judge’s reasons for rejecting the defence hypothesis that the deceased stayed on the bonnet of the appellant’s car until falling from that position to the commencement of F1 inadequate. The Judge’s process of reasoning is adequately revealed such that this Court is in no way frustrated in undertaking the appellate function. I would dismiss ground one. With respect to the submission that the trial Judge failed to have sufficient regard to Mr England’s evidence in her findings as to the deceased’s movements and the appellant’s manner of driving, I agree with Stanley J for the reasons he gives that ground two should be dismissed.

  4. I also agree with Stanley J, for the reasons he gives, that permission to appeal on grounds three, four and five should be refused and that ground six should be dismissed.

  5. I would dismiss the appeal.


Details
AGLC
R v Sabet [2018] SASCFC 18
Case
[2018] SASCFC 18
Decision Date

CaseChat Overview and Summary

The case of *R v Sabet* involved an appeal against a conviction. The appellant, Mr Sabet, was appealing his conviction, with the primary dispute revolving around the evidence presented at trial, particularly concerning the speed of the appellant's vehicle and the cause of the victim's death. The appeal was heard by Blue, Stanley, and Hinton JJ.

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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The judge gave lengthy reasons for her findings. Notwithstanding her failure to adequately address Mr England’s opinion, I am satisfied that his opinion as to speed should be rejected as a reasonable possibility having regard to the eyewitness evidence overwhelmingly in favour of the victim’s body having passed over the roof of the car following the collision. I have addressed that eyewitness evidence earlier in these reasons. The absence of blood and biological material on the roof of the car and rear tyre cover is no reason to doubt the eyewitness evidence. That evidence proved beyond reasonable doubt that the victim’s body became airborne as a result of the collision. Mr England’s opinion can be rejected as lacking the requisite evidentiary foundation. It was not a reasonable possibility that the appellant’s vehicle was traveling at a speed slower than Sergeant Kuchenmeister’s most conservative estimate of 83-98 kilometres per hour. It was proved beyond reasonable doubt that the collision and victim’s death was caused by the excessive speed and grossly inattentive lookout with which the appellant was driving his vehicle. Conclusion I would refuse permission to appeal on grounds 3, 4 and 5 and dismiss the appeal.HINTON J: I have had the advantage of reading Stanley J’s judgment in draft for which I am grateful. I do not summarise the evidence in this case, nor the trial Judge’s reasons or arguments advanced on the hearing of the appeal save as is necessary to explain my reasoning. I agree with Stanley J’s treatment of the principles concerning the duty upon a judge sitting in a trial without a jury to give reasons and the extent of that duty. In Douglass v The Queen French CJ, Hayne, Crennan, Kiefel and Bell JJ endorsed Doyle CJ’s explanation as to why a judge is required to give reasons for a verdict following a trial by judge alone.[32] In identifying why reasons must be given, what is required in order that reasons may be considered adequate is also revealed. Doyle CJ said:[33]If a judge sitting without a jury is not required to give any reasons, the CCA will have no ability to determine whether the judge has correctly applied the relevant rules of law. Absent reasons from the trial judge, the ability to correct a verdict affected by “a wrong decision on any question of law” will be confined to errors made in the course of the trial itself, and to situations in which it can be said that, as a matter of law, it was not open to the judge to convict. Cases in the latter category would be relatively rare. The absence of reasons will also mean that in those cases in which the correct use of the evidence is affected by rules of law, there will be no means of determining whether the judge identified and correctly applied the relevant rules. The absence of reasons would also mean that in cases in which the circumstances call for particular care, such as cases involving identification evidence, there will be no means of knowing whether and how the judge dealt with the matter requiring particular care. To a considerable extent, the CCA would be deprived of the ability to decide whether there has been a miscarriage of justice as a result of the manner in which the conclusion of guilt was reached. I do not suggest that this is a comprehensive survey of the matter, but the points that I have made are sufficient to indicate that if reasons are not required, the scrutiny of a trial by the CCA will be substantially contracted.[32] Douglass v The Queen (2012) 86 ALJR 1086 at [14]; R v Keyte (2000) 78 SASR 68 at 76.[33] (2000) 78 SASR 68 at 76.

Ratio Decidendi

Legal Principle Established

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