R v Shah - [2018] SASCFC 90

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SHAH
[2018] SASCFC 90
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Doyle)
22 August 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - ACTS ENDANGERING LIFE OR PERSON
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - DANGER TO PUBLIC OR PERSON
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY
Appeal against conviction.
The appellant was convicted by a jury of two counts of aggravated endangering life and leaving the scene of an accident after causing harm by careless driving. The circumstance of aggravation was that the victims of the offences were police officers.
The appellant appeals against the convictions on the following grounds. First, the Judge erred in not excluding evidence that his car had been involved in a high speed police pursuit four days earlier. Second, there was a miscarriage of justice by reason of a statement in the prosecutor’s opening and the innuendo arising from some of the evidence given by the police officers and the cross-examination of the appellant by the prosecutor. Third, the Judge erred in directing the jury that the element of recklessness for the purposes of s 29(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA') involved foresight of no more than that a life might be endangered.
Held, per Curiam: Appeal allowed.
1.       The proper exercise of the unfairness discretion required the Judge to consider limiting the evidence in the way proposed by the appellant’s counsel. The Judge’s failure to advert to that middle course at all vitiated her Honour’s exercise of the discretion. On a proper exercise of the discretion the evidence should have been so limited. The admission of the evidence of the pursuit, with all of its prejudicial effect, resulted in a miscarriage of justice (at [27]).
2. It is an element of s 29 of the CLCA that the defendant knows that his or her conduct is likely to endanger life, and it is not sufficient to show that the defendant merely appreciated that it might do so (at [46]).
3.       The Judge’s direction on the mental elements of reckless indifference was wrong in law (at [48]).
4.         Appeal allowed. Convictions set aside. Matter remitted to the District Court for a new trial (at [52]).
Criminal Law Consolidation Act 1935 (SA) ss 19, 21, 23, 24, 29, 32C, 47, 48, 49, 85(1), 85A, 85B, 245, 254, 255, 257, referred to.
R v O (unreported, Supreme Court of South Australia, Bleby J, 19 June 1997), discussed.
R v Brown (1975) 10 SASR 139; R v Wozniak (1977) 16 SASR 67; R v Crabbe (1985) 156 CLR 464; R v Morgan [1976] AC 182; Banditt v The Queen (2005) 224 CLR 262; Royall v The Queen (1991) 172 CLR 378, considered.

R v SHAH
[2018] SASCFC 90
Court of Criminal Appeal: Kourakis CJ, Blue and Doyle JJ

THE COURT:      The appellant was convicted in the District Court by jury of the following offences:
·aggravated endangering life (count 1);[1]
·aggravated endangering life (count 3);[2] and
·leaving the scene of an accident after causing harm by careless driving (count 5).[3]
[1]    Criminal Law Consolidation Act 1935 (SA) s 29(1).
[2]    Criminal Law Consolidation Act 1935 (SA) s 29(1).
[3]    Criminal Law Consolidation Act 1935 (SA) s 19AB(2).
The circumstance of aggravation in counts 1 and 3 was that the victims of the offences were police officers, Brevet Sergeant Richard Miller and Detective Brevet Sergeant Thomas Conner.
In the course of conducting enquiries into serious offences committed by the driver of a BMW motor vehicle (the BMW), officers Miller and Conner found that vehicle parked on a suburban Adelaide street. They stopped their unmarked Holden Commodore police vehicle (the Commodore) about 100 metres away facing the BMW but kept the engine running. Just minutes later they saw the appellant walking towards the BMW. He appeared to notice the Commodore before quickly getting into the BMW. As the BMW pulled away from the kerb, the police officers, suspecting that the appellant may try to evade them, drove the Commodore into the middle of the road and activated their police lights. There was a collision between the cars and the appellant decamped on foot.
Police officers Miller and Conner testified that the BMW was driven deliberately into the Commodore. The appellant testified that the Commodore moved so suddenly and dangerously into his path that the collision was unavoidable.
The Judge allowed the prosecution to adduce, over the objection of the appellant, evidence that the BMW had, four days earlier, been involved in a police pursuit which police had terminated because of the high speeds reached in the chase.
The Judge directed the jury that a person is recklessly indifferent for the purposes of s 29(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) if he or she performs the relevant act, realising that a consequence of doing so might be to endanger the life of another, but he or she nevertheless goes ahead and performs the act anyway.
The appellant appeals on the grounds that:
1the Judge erred in not excluding the evidence of the earlier police pursuit of the BMW;
2there was a miscarriage of justice by reason of a statement in the prosecutor’s opening and the innuendo arising from some of the evidence given by the police officers and the cross-examination of the appellant by the prosecutor; and
3the Judge erred in directing the jury that the element of recklessness involved foresight of no more than that a life might be endangered.
The appeal must be allowed. The relevance of the evidence of the prior police pursuit was limited to showing the improbability that the police would have caused the collision by driving dangerously or carelessly when their purpose was to speak to the driver of the BMW as part of their investigation of a serious offence. The prejudicial effect of the evidence of the pursuit was that the jury might reason from the appellant’s driving of the BMW on 19 July 2012, and from the collision with the Commodore in particular, that the appellant was also the driver on 15 July 2012 and therefore had a propensity to drive dangerously to evade police attention. The prejudicial effect of that evidence could have been avoided, whilst at the same time preserving the substantial part of its probative weight, by allowing the prosecution to adduce evidence that the police were engaged in the proper investigation of a serious offence involving the BMW without any further elaboration. The appellant’s counsel offered that compromise course on the application to have the evidence excluded, but the prosecution pressed for admission of the evidence of the detail of the earlier pursuit. The proper exercise of the unfairness discretion required the Judge to consider limiting the evidence in the way proposed by the appellant’s counsel. The Judge’s failure to advert to that middle course at all vitiated her Honour’s exercise of the discretion. On a proper exercise of the discretion, the evidence should have been so limited.
It is not necessary to determine ground 2, because the appeal must be allowed on ground 1. It is sufficient to observe that evidence adduced by the prosecutor exacerbated the prejudicial effect of the admission of the evidence of the earlier pursuit.
For the same reason, it is not necessary to determine ground 3. However, because the matter is to proceed to a re-trial, we have decided the issue of construction of s 29(1) of the CLCA. It is an element of s 29(1) that the defendant know that his or her conduct is likely to endanger life, and it is not sufficient to show that the defendant merely appreciated that it might do so.
The evidence
On 15 July 2012, police officers Miller and Conner conducted a high speed pursuit of a dark green BMW. They were not able to stop the vehicle or identify its driver. Their enquiries revealed that the BMW was registered in the name of the appellant’s father. Over the following days they attempted to locate the BMW, finding it on the morning of 19 July 2012 parked facing east on the northern side of a suburban street close to the appellant’s home address.
The police officers parked the Commodore on the southern, west bound, lane of the street with the engine running so that the BMW could be followed immediately if need be. Miller testified that he saw the appellant walk down the street and go to the rear of the BMW, stop for a very short time at the rear driver’s side corner and then approach the driver’s side door. Miller saw that the appellant look in the direction of the Commodore momentarily before turning away from the car, taking half a step back to walk towards the direction he had come from before immediately turning back towards the BMW and getting into it. When Miller saw the BMW pulling away from the kerb he moved the Commodore into the centre of the roadway, but allowed enough room on either side for the BMW to drive around it. Miller described the manoeuvre as follows:
A.As soon as I see the BMW moving out into the roadway, I pull away from the kerb, from the southern assignment, roughly, on this map, and I move my vehicle roughly into the centre of the roadway.
…
Q.What is your intention in putting your vehicle in the middle of the road.
A.To indicate to Mr Shah that we want him to stop, we want to conduct an overt stop on Mr Shah, let him know that, firstly, we want to stop and speak to him and, secondly, that we're the police.
Q.You've used the words 'overt stop'; it might be obvious but what is an overt stop.
A.There's nothing secretive about it. We're not trying to hide the fact that we're the police.   We're not trying to hide the fact that we want to stop - I guess the contrary would be a covert stop where we might intercept a vehicle at a set of traffic lights, pull in front of it, you know, conduct obs when there is an opportunistic time. An overt stop is quite simply 'We're the police, we want you to stop'.   Exactly the same as stopping a member of the public in any marked police vehicle.
Q.Officer Conner is still next to you when you move to the centre of the road when you're doing this overt stop.
A.Yes.
Q.Does he do anything at that point.
A.Yes, he puts the red and blue strobe lights on for me.
Q.Can you recall where the red and blue strobe lights were on that make of Commodore.
A.From recollection - I know they're windscreen mounted. From recollection, they sit in behind the rear vision mirror.
…
Q.When making an overt stop, is that something that always happens or usually happens or only sometimes. You tell us.
A.For an overt stop, every single time.
…
A.To give a clear indication to the person that we're the police and we want them to stop.
…
Q.I'm not trying to pin you down to a precise measurement but, in terms of passing room on either side of the Commodore, what was your estimation.
A.Certainly there was sufficient room to pass either side. If you - if you imagine Inglebrae Crescent or we picture Inglebrae Crescent, it's a normal residential street.   If there were vehicles parked either side of the road, you could certainly drive down between them without any risk of colliding with those vehicles. Conversely, me being parked in the centre, someone can drive either side of me.
Q.It follows then that even though you're placed in the centre, you're not actually providing a barrier or blocking the whole roadway.
A.No, no. Short of someone complying with my direction, there's nothing to stop a person going around me.
(emphasis added)
Miller testified that the BMW initially pulled away from the kerb slowly and gradually but it then launched forward and accelerated straight down the centre line of the roadway. Miller moved the Commodore to his left and then braked hard to bring it to a standstill in an unsuccessful attempt to avoid a collision. Miller said that the engine of the BMW sounded as if it was under full throttle but he did not hear any tyres squealing. After the impact he saw the accused running from the BMW. In re‑examination Miller testified:
Q.Now in that context can you tell the jury why it was you left 120 m between you rather than, for example, 50.
A.The original purpose, once we had located the vehicle, was simply to maintain observations of that vehicle to prevent it from leaving the area. Obviously we have a contingency in place at a vehicle stop, which we attempted to put into place, but the 120 m that we'd left, or the distance that we'd left, is quite simply because we don't want the person who is in charge of that vehicle, whoever that may be, to be aware of our presence when we are first in observations, until such as point as we've got available resources to deal with the vehicle to prevent that from leaving, and also an approach on the house where we believe the potential driver would be.
…
Q.Does the distance you put between yourself and the vehicle that might possibly go mobile also have relevance in deciding how far away you should be; I put that clumsily, I put it in this way: if you are concerned that a vehicle is going to go mobile is it an advantage or a disadvantage to give yourself some distance from it.
A.That wasn't really - that was a contingency that we considered, that it may go mobile, but as I've discussed it, at that point we were only maintaining observations of the vehicle, so the contingency of it going mobile was a possibility, and the only contingency we had in place was ultimately to announce by moving to the centre of the roadway and putting our dome lights on that we were the police, or our strobe lights on that we were the police, and relying on the compliance of the driver of the other vehicle. In the event that the driver didn't comply we would probably not engage in a pursuit for the offences we were investigating at the time, and certainly if we did engage in a pursuit that would be very short-lived because of our management policies in relation to it. So it's really down to compliance of the driver.
(emphasis added)
There was contested evidence about the respective points of impact of the BMW and the Commodore and in particular as to whether the collision was head on or whether it was to the side. Senior Sergeant David Kuchenmeister, a police officer of more than 28 years who has worked with the major crash division since August 2006, was called by the prosecution. He expressed the opinion that there was a 50 percent degree of overlap. Mr Graham England, a collision reconstruction expert, who had been a police officer for 38 years, was called by the defence. He expressed the opinion that no more than the front of the headlight of the BMW came into contact with the Commodore at the point of impact. According to Mr England, at most there was a one-third overlap.
The appellant gave evidence that he was once the owner of the BMW but he had sold it to his father. He testified that one of his friends had dropped the BMW off on the night before the collision. He went out onto the street intending to drive the BMW to his father’s house and noticed the Commodore before he got into the BMW. After he pulled out from the northern kerb, and as he drove in an easterly direction down the street, the Commodore suddenly moved diagonally across the road. He was travelling between 30 and 50 kilometres per hour at the time. He attempted to drive around the Commodore without braking by swerving to the right but was unable to avoid a collision.
The appellant testified in examination-in-chief as follows:
A.As I was driving down the street, I was gradually driving down the street, on the normal side of the road, as I've got towards the end the car, the red or the maroon car has suddenly come across in a diagonal form like that (INDICATES), so I'm driving down like this, this car here has come across like that (INDICATES).
HER HONOUR: The witness is indicating driving in a straight manner and then with his right arm indicating left, right hand indicating left.
XN
Q.So in words can you describe what the Commodore did.
A.It all of a sudden crossed into my path on a diagonal sort of route, blocking off the gutter and the whole way down on my left side (INDICATES).
Q.At this stage where were you on the road.
A.I was on the left-hand lane, I know there's no lines on there, but I was on the left-hand side travelling towards Main North Road, and that whole side of the road was blocked, I wasn't able to go down there any more (INDICATES).
Later in examination-in-chief he continued:
A.Okay, what happened is it, as I was driving down left (INDICATES), what sort of happened is the car's come out in a diagonal manner like that, I've swerved around. At that stage there were no identifying lights or anything, I couldn't see in the windows. There was a little bit of sun glare up from the sun, it was rising into the afternoon, that didn't affect my view in any way. I did actually try to look in the windows to see if I could see anyone in there, to see what was happening, I couldn't see anything of the sort. So as my reactions I went to swerve, now I've only had a couple of seconds, because what sort of happened is I'm driving down the street, I'm looking at the odometer, the speedo, to make sure I'm not speeding. As I've looked up the car's come across. Now as a reaction I've turned right to go around the vehicle, and then as I've turned right to swerve around the vehicle it has then again come and did the same action in front of me. So it's come to like a heavy acceleration and brake and then a heavy acceleration again towards me. At that stage there was no lights activated at all. It was as though a cat had run across the road quickly, that's how quick it had happened.
Q.I think you have indicated that it has moved as you are looking to your left and then moved back to your right.
A.That's correct.
Q.You have already described you have moved to the right, what have you done then.
A.As I've moved to the right?
Q.Yes, you've moved to the right - sorry, have you changed direction yourself at all.
A.As I've continued to swerve around the vehicle?
Q.Yes.
A.I've noticed that, basically as I've continued to swerve round the vehicle that I was able to only get through that vehicle on the right-hand side, so I've sort of went to go around the path.
Q.And what's happened.
A.Then that vehicle has then again accelerated in front of me again.
Q.And then what's happened to your vehicle.
A.The collision occurred.
The appellant testified that he believed that the Commodore might have been driven by someone intending to cause him harm because of the manner in which it was driven across the road.
In cross‑examination, the appellant repeated his claim that the collision was caused by the dangerous manoeuvring of the Commodore into the centre of the street:
A.The car drove into my path.
Q.So it didn't matter what happened to them.
A.I'm not saying that at all.
Q.But it didn't matter enough for you to even turn your head for a second.
A.Like I said, I was fearing for myself.
Q.From what, you couldn't hear anyone chasing you.
A.I was fearing from the way the car drove at me in an aggressive manner.
Q.But that was before the impact.
A.That's right.
…
A.They collided with me.
Q.They were stationary at the point of impact or are you challenging that too.
A.I'm saying that they drove directly into my path on two occasions, and on the second time I was unable to avoid it.
Application to exclude (ground 1)
Evidence

On the appellant’s application to exclude the evidence of the pursuit of 15 July 2012, the prosecutor identified the relevance of the evidence as being to explain why the police were interested in the vehicle and why they took what might otherwise be seen as an ‘extraordinary’ and ‘astonishing’ step of moving their vehicle in the centre of the road in the path of the BMW and to avoid the jury speculating as to the reason. Thus the prosecutor said at trial:
Now whoever was driving the BMW on the earlier occasion, the police should in our submission be allowed to explain why they were conducting undercover police observations on the BMW, why they parked their vehicle, why they moved their vehicle immediately out to the middle of the road, effectively providing some obstruction, it wasn't complete but some obstruction, to the BMW's path.
Now if the jury have no explanation as to why the police are there or why they move their vehicle into the middle of the road, the real risk is they are going to speculate.   The secondary reality is the police are not going to be in the position to explain why they take what might otherwise seem to be an extraordinary step.   'Hang on members of the jury, why would the police do such an astonishing thing? Bother waiting for this driver, bother observing the BMW and then moving the vehicle right into the middle of the road?'.
… because the police had to have a reason to be interested in the BMW, had to have a reason to place their vehicle in the middle of the road.   One would not expect, with respect, the police to ordinarily do that.
But my friend, with respect, says 'Well it can simply be led on the basis "Well the police are often interested in vehicles, they often wish to stop vehicles"'.   They don't often, with respect, send unmarked police vehicles to conduct observations in a residential street at 11 in the morning and then move their vehicle to the middle of the road when they see it pulling off.
The first aspect of explaining why the police were interested in the vehicle would have been achieved by adducing evidence that the police officers wished to speak to persons associated with the BMW for the purposes of investigating a serious offence. The second aspect of explaining why the police took an ‘extraordinary’ or ‘astonishing’ step is contrary to the evidence of officers Miller and Conner who, as has been seen, testified that they were conducting an ‘overt stop’ in the way commonly employed when stopping members of the public, and had allowed enough space for the BMW to pass to either side.
Defence counsel’s submission on how the prosecution purposes could be accommodated without introducing the prejudicial effect of the police pursuit was as follows:
The next item I wish to deal with is the issue in relation to 15 July, the pursuit of the BMW.   In simple terms your Honour what happened on 15 July goes to the BMW, it doesn't go to my client.   It's an uncharged act.   On the prosecution position, as I understand it, they would acknowledge that there is a complete inability on their part to prove that uncharged act beyond reasonable doubt in relation to my client, and it is on that basis sheer prejudice.
The fact that a BMW, that is registered in my client's father's name, is seen speeding along Tapleys Hill Road some two weeks earlier is then sought to be used to justify the presence of police officers near my client or near the BMW on the day of the chase.   Now, it might become relevant if I attack the police officers for their very presence at the scene, but in the absence of that all it does is invite the jury to reason that because the BMW was driving at a speed dangerous to the public on Tapleys Hill Road a few days earlier, by a person who is not known, or by a person that was not identified by the police officers, that my client must have been the person that was driving the vehicle on the day in question, and that he has a propensity to drive vehicles in that fashion, and it's propensity through the back door.
Now your Honour might think perhaps we might cure that with a direction, my submission is there is no need to, because simply the fact that the police officers are looking for or interested in a BMW there is nothing sinister about that, they are interested in all sorts of cars for all sorts of reasons.   That's all they need to lead, that they were interested in it.   There is no reason to adduce the evidence of the speeding or the high speed chase, the fact that is called off or anything of that nature that occurred on 15 July.
The solution proposed by the defence counsel was eminently sensible and practical. The prosecutor chose instead to press for admission of the evidence of the police pursuit. That was unfortunate. The only reason given by the Judge for declining to exclude the evidence was that it was directly relevant to the commission of the offence of aggravated endangering life and to the offences charged in the alternative of driving in a dangerous manner. The Judge did not elaborate on those reasons.
On appeal the Director seeks to refine the articulation of the contended relevance of the evidence as to the nature of the police interest in the BMW. He contends that evidence of the events days earlier was relevant to the likelihood of the police officers having acted in the manner contended by the appellant, namely attempting to block or make contact with his car rather than merely making their presence known by activating their lights and moving their car to the centre of the road. The Director contends that it was relevant because the police interest related to a matter that was not so serious as to make the police officers engage in the manoeuvre attributed to their vehicle by the appellant’s evidence.
The difficulty with this contended relevance is that it not only differs from the relevance articulated by the prosecutor at trial, but also that it found no voice in the evidence given by the police officers. In any event, even if the evidence had this contended relevance, it added little to the improbability that police officers acting in the ordinary course of their duties would drive in a manner which endangered themselves and others in the absence of a pressing need to do so. The probative value was slight and insufficient to outweigh its prejudicial effect.
The Judge directed the jury on the use of the evidence as follows:
So, members of the jury, I need to give you one further legal direction at this stage. The evidence that the BMW was involved in a high speed chase four days earlier is only relevant for a very particular purpose and that is to explain why the police were at Inglebrae Crescent on 19 July and is relevant to the question of whether the police did activate the emergency lights and did place their vehicle in the centre of the road because on the evidence of Sergeant Miller that was the contingency plan should the BMW, in his words, ‘go mobile’ and the police actions have been informed by the police having been involved in a high speed chase in respect of the same car four days earlier.
Members of the jury, I remind you there is no evidence whatsoever that the accused was the driver of the vehicle four days earlier and you must not reason, as I am sure you will not, that because the vehicle was previously involved in a high speed chase, this accused was involved in a high speed chase and he is the sort of person who would be likely to commit the charged offences and therefore more likely to be guilty of the charged offences. That would be an impermissible line of reasoning and an incorrect approach and I am sure you will not adopt it but I direct you not to reason that way.
As can be seen, the Judge’s direction limited the use to that identified by the prosecutor summarised above. It was a use which required no elaboration beyond evidence that the police wished to speak to the driver of the BMW because they were investigating a serious offence involving its use.
Importantly, the Judge’s reasons do not disclose any consideration of the middle ground proposed by defence counsel. The failure to consider that pragmatic solution, which effectively allowed the probative value of the evidence to be conveyed to the jury without its seriously prejudicial effect, vitiated the Judge’s exercise of the unfairness discretion adversely to the appellant. The Judge erred in law. The admission of the evidence of the pursuit, with all of its prejudicial effect, has resulted in a miscarriage of justice. The appeal must be allowed on this ground.
Other prejudicial material (ground 2)
The appellant contends that other prejudicial material, including aspects of the testimony of the police officer and the prosecutor’s opening and cross-examination of the appellant, resulted in a miscarriage of justice.
The prosecution adduced evidence that the keys found by police inside the BMW were on a Harley-Davidson motorcycle key ring. Additionally, and notwithstanding an agreement to the contrary, the prosecutor also adduced from Conner that he had ‘contacted one of [his] offsiders at Crime Gangs just to let him know that [they] had located the vehicle’.
The innuendo arising from that evidence, taken as a whole, is that the appellant was of interest to the police because he was associated with outlaw motorcycle gangs. The evidence plainly had no probative value. The suggestion put on appeal that the evidence showed only an interest of the Crime Gangs Task Force in the BMW rather than the appellant has no merit, firstly because this would have had no relevance, and secondly, because the evidence in this case, and the cross-examination of the prosecutor, closely connected the appellant to the BMW. The evidence therefore had the prejudicial effect of which the appellant complains.
The appellant also relies on several other matters in support of this ground. It is not necessary to further consider this ground because the appeal must be allowed on ground 1. Nonetheless, we observe that the matter mentioned in the preceding paragraph exacerbated the prejudicial effect of adducing the detail of the police pursuit. We take this opportunity to emphasise the importance of the duty of prosecutors to be vigilant in separating out prejudicial material from the probative evidence they adduce. The risk of not doing so may lead to an unnecessary retrial with all the adverse consequences that entails for witnesses, the accused and the community.
The summing up (ground 3)
The Judge directed the jury on the elements of the offence as follows:
First, the prosecution must prove that the accused consciously and deliberately performed an act which was likely to endanger the life of another. An unconscious, accidental or non‑deliberate act would not be sufficient. However, the act need not in fact endanger the life of another, nor does the act need to in fact cause injury to another person. It is sufficient for the prosecution to prove beyond reasonable doubt that the act was likely to endanger the life of another.
In this case the prosecution alleged that the accused drove his vehicle in a manner which endangered the life of police officer Sergeant Miller, count 1, and police officer Sergeant Conner, count 3. It is the accused’s driving at the time of and immediately prior to the collision which is relied upon by the prosecution in proof of this element of the offence. The prosecution allege that the accused drove his vehicle directly at the police’s motor vehicle at speed and his actions in doing so endangered the life of each police officer.
The prosecution relied upon the following matters in proof of this element: the speed at which the accused’s vehicle was travelling at the point of impact; that the police vehicle was stationary and, on the prosecution case, in the centre of the road at the time of impact; and the movement of the accused’s vehicle, on the prosecution case, in veering right onto the wrong side of the road for the accused’s direction of travel and then moving left into the police vehicle moments before colliding with the police vehicle.
On the defence case, the accused did not deliberately collide with the police vehicle. The accused was trying to avoid contact with the Holden Commodore which he did not understand to be a police vehicle, by attempting to manoeuvre his vehicle to the right and around the car whilst accelerating and at speed.
It is a matter for you, members of the jury, whether you are satisfied beyond reasonable doubt that he accused’s driving was likely to endanger the life of police officer Richard Miller or Thomas Conner.
The second element the prosecution must prove beyond reasonable doubt is at the time of performing the relevant act, the accused knew the act was likely to endanger the life of another. On the prosecution case, if you are satisfied beyond reasonable doubt that the accused drove deliberately at the police vehicle, accelerating and at speed, the prosecution submitted that you should have little difficulty finding proved that the accused knew such driving was likely to endanger the life of each police officer.
On the defence case, the prosecution has not proved beyond reasonable doubt that the accused deliberately drove at the police vehicle and the prosecution has not proved the accused knew his act of driving was likely to endanger the life of each police officer. Indeed, on the defence case, the accused believed he was taking evasive action by attempting to manoeuvre his vehicle around the Holden Commodore.
Third, the prosecution must prove that the accused either positively intended to endanger the life of another or was recklessly indifferent as to whether the performance of the relevant act, the driving, endangered the life of another.
Members of the jury, a person is recklessly indifferent if, while not intending to endanger the life of another, he performs the act realising that a consequence of doing so might be to endanger the life of another but he nevertheless goes ahead and performs the act anyway. It is the accused's state of mind while driving in the period leading up to and at the point of impact which is in issue in respect of this element of the offence.
The prosecution case is the accused realised the Holden Commodore was a police vehicle and he drove deliberately at the police vehicle at speed to, in effect, disable the police vehicle and avoid being spoken with by police either because he was disqualified from driving or because he had in his vehicle an item he did not wish the police to find, or both. In those circumstances, the prosecution case is that at the very least the accused was recklessly indifferent as to whether his driving endangered the life of each police officer.
On the defence case, the accused was attempting to avoid a vehicle which was unexpectedly travelling towards him and which he did not understand to be a police vehicle and he was not intending to endanger the life of each police officer or recklessly indifferent to that consequence. Indeed, on the defence case, he was actively trying to avoid a collision with the police vehicle, albeit unsuccessfully.
(emphasis added)
Section 29 of the CLCA relevantly provides:
29—Acts endangering life or creating risk of serious harm
(1)Where a person, without lawful excuse, does an act or makes an omission—
(a)     knowing that the act or omission is likely to endanger the life of another; and
(b)     intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered,
that person is guilty of an offence.
…
(2)Where a person, without lawful excuse, does an act or makes an        omission—
(a)     knowing that the act or omission is likely to cause serious harm to   another; and
(b)     intending to cause such harm or being recklessly indifferent as to   whether such harm is caused,
that person is guilty of an offence.
…
(3)Where a person, without lawful excuse, does an act or makes an        omission—
(a)     knowing that the act or omission is likely to cause harm to another;     and
(b)     intending to cause such harm or being recklessly indifferent as to        whether such harm is caused,
that person is guilty of an offence.
…
Section 29(1)(b) uses the term ‘recklessly indifferent’. Other sections of the CLCA (addressed below) use either the term ‘recklessly’ or the term ‘recklessly indifferent’. In ordinary language, these two terms are generally used synonymously. In various articulations of the element of recklessness in common law offences courts have used these terms interchangeably. However, the position under the CLCA is complicated by the facts that it contains different definitions of each term and that those definitions apply only to specific and limited offences and do not on their terms apply to many offences in which it is an element that the defendant acts either recklessly or with reckless indifference.
The background to statutory references to recklessness is the common law.   The mental element of nearly all common law offences was either intention or recklessness. The subject matter of the intention or recklessness depended on the specific offence. Recklessness always included awareness of a risk of the relevant matter, whether it be causation of a consequence such as grievous bodily harm, a fact such as lack of consent by the complainant or some other matter. However the level of risk of which the defendant had to be aware differed according to the offence. For example, at one extreme in the case of rape it was sufficient that the defendant was aware of the possibility that the complainant was not consenting.[4] At the other extreme, in the case of murder it was necessary that the defendant was aware of the probability (ie more likely than not) that the defendant’s conduct would cause grievous bodily harm.[5]
[4]    R v Brown (1975) 10 SASR 139 at 162, 164; R v Morgan [1976] AC 182 at 209; R v Wozniak (1977) 16 SASR 67 at 74, 78. See also in the context of statutory offences of rape where the legislature merely refers to reckless indifference without defining its meaning: Banditt v The Queen (2005) 224 CLR 262 at [27], [32], [35] and [37]-[39] per Gummow, Hayne and Heydon JJ.
[5]    R v Crabbe (1985) 156 CLR 464 at 468-470; Royall v The Queen (1991) 172 CLR 378 at 394-395, 400, 412, 416-417, 424.
Section 21 of the CLCA defines the word ‘recklessly’ in the context of causing harm or serious harm and for the purposes of Division 7A of Part 3 as follows:
recklessly—a person is reckless in causing harm or serious harm to another if the person—
(a) is aware of a substantial risk that his or her conduct could result in harm or serious harm (as the case requires); and
(b)engages in the conduct despite the risk and without adequate justification;
It may be observed that there are two components to the definition. The first component involves the knowledge of the defendant of a risk that his or her conduct will have the relevant result and prescribes the level of risk as ‘substantial’. The second component involves a decision by the defendant to engage in the conduct despite (regardless of) the risk and without adequate justification.
The second component is often expressed in the common law or in a statutory context by the shorthand expression that the defendant ‘does not care’ about the relevant consequence or other matter. For example, in The Queen v O,[6] Bleby J said:
Reckless indifference … means that the accused must have performed the act knowing that it was likely to endanger the life of a person, not intending that it should endanger the life of a person, but not caring whether it would or would not endanger the life of a person.
[6] Unreported, Supreme Court of South Australia, Bleby J, 19 June 1997.
Subsections 23(3) and 24(2) of the CLCA enact the offences of causing serious harm and harm respectively by a person who ‘is reckless in doing so’ and the definition in s 21 applies to those offences (notwithstanding the use of the adverbial form ‘recklessly’ in s 21 and the adjective ‘reckless’ in s 23 and 24).

By contrast, the definition of ‘recklessly’ in s 21 does not in terms apply to s 29(1) of the CLCA because that subsection proscribes the endangering of life and not the causation of harm. That subsection also uses the term ‘reckless indifference’ rather than ‘recklessly’.
The term ‘reckless indifference’ is defined for the purpose of Division 11 of Part 3 of the CLCA by s 47 of the CLCA as follows:
47—Reckless indifference
For the purposes of this Division, a person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she—
(a)     is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or
(b)     is aware of the possibility that the other person might not be consenting                 to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or
(c)does not give any thought as to whether or not the other person is               consenting to the act, or has withdrawn consent to the act before deciding        to proceed.
Sections 48 and 49 of the CLCA enact the offences of rape and compulsion of sexual manipulation by a person who is ‘recklessly indifferent’ to the fact that the other person does not or has withdrawn consent and the definition in s 47 applies to those offences.
As observed above, subsection 29(1) uses the term ‘recklessly indifferent’ but the definition in s 47 does not in terms apply to this offence because it is not contained in Division 11 of Part 3. The same applies to the offences enacted by sections 19 (unlawful threats), 29(2) (creating risk of serious harm), 32C (spiking food or beverage), 85(1) (arson), 85(1) (property damage), 85A (endangering property), 85B (causing a bushfire), 245 (interfering with jurors), 254 (escape from lawful custody), 255 (harbouring an escapee) and 257 (criminal defamation). In addition, the definition of ‘reckless indifference’ contained in s 47 is tailored to offences in which lack of consent of the complainant is an element and is inapposite to endangerment of life and most (if not all) of the other offences referred to in this paragraph.
In summary, the concept of ‘reckless’ and ‘reckless indifference’ can invite a different focus, or at least a focus on a different level of risk, depending on context.
Returning to the construction of s 29(1), if the legislature had not included paragraph (a) making it an element of the offence that the defendant know that the act or omission is likely to endanger the life of another; it may well be that paragraph (b) insofar as it refers to reckless indifference on its proper construction would have required that the defendant is aware of a substantial risk that his or her conduct will endanger the life of another and engages in the conduct despite the risk and without adequate justification.
However, s 29(1) must be construed as a whole and it would be incongruous if paragraph (a) required knowledge of likelihood and paragraph (b) required only knowledge of substantial risk. Accordingly, on its proper construction, paragraph (b) insofar as it refers to reckless indifference requires that the defendant know that it is likely that his or her conduct will endanger the life of another and does not care, ie engages in the conduct despite the risk and without adequate justification. The articulation of this second component reflects the language of the definition of ‘recklessly’ in s 21 not because that definition applies to s 29 as such but because this second component is part of the ordinary conception of reckless indifference in ordinary parlance and on the proper construction of s 29. This is consistent with the construction of ‘reckless indifference’ in s 29 adopted by Bleby J in The Queen v O[7] extracted above.
[7] Unreported, Supreme Court of South Australia, Bleby J, 19 June 1997.
We observe that, by reason of the element of ‘without adequate justification’ as part of the concept of recklessness or the element of ‘without lawful excuse’ or both, there may be some conduct which is not reckless despite the actor’s appreciation of the likelihood that life will be endangered. Medical treatment is one such example. So too is conduct engaged in under dangerous circumstances, for example on the roads or in work places, but in the hope that a known risk will nonetheless be averted.
Be that as it may, the direction given by the Judge in this case which fixed the appreciation of risk at the mere possibility of endangerment of life was wrong in law.
The earlier, correct, direction that it was an element of the offence that the appellant knew his actions were likely to endanger life is, on its face, inconsistent with the later direction that the element of recklessness was satisfied by an appreciation that the life of the police officers might have been endangered. If the jury had been expressly directed that if they failed to find the knowledge element proved it was not necessary to consider the subsequent elements and the accused was entitled to an acquittal, the proviso might have been applied on the ground that the error of law could not have affected the verdict. So too if, when the recklessly indifference direction was given, the jury had been reminded that it was still necessary for the prosecution to prove that the appellant knew that it was likely that his driving would endanger the lives of the police officers. However, in the absence of such directions there is a substantial risk that the jury heard the directions as alternative states of mind, either of which would establish the offence.
We observe that the prosecution case was that the appellant deliberately drove the BMW into the Commodore with the intention of endangering the lives of the police officers and the appellant’s case was that he did not deliberately drive the BMW into the Commodore at all. In these circumstances, the question arises whether the directions concerning recklessness were capable of affecting the jury’s verdict. However that question need not be considered as the appeal is to be allowed in any event on ground 1.
Conclusion
We allow the appeal on ground 1.
We set aside the convictions on all counts. We direct a new trial on all counts.