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…

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R v Sabet [2018] SASCFC 18
Case
[2018] SASCFC 18
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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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