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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Shah

Details

AGLC: R v Shah [2018] SASCFC 90
Case: [2018] SASCFC 90
Decision Date: 22 August 2018

CaseChat Overview and Summary

The appeal concerned the convictions of the appellant, Mr Shah, for offences arising from a high-speed pursuit. Police officers attempted to stop a BMW, which was later found parked near the appellant's home. The appellant was observed approaching and entering the vehicle. When the BMW began to move, a police Commodore was positioned in the centre of the road with its lights activated, intending to signal an overt stop. The appellant then drove the BMW, which the prosecution alleged was deliberately driven into the police Commodore to endanger lives. The appeal was heard by Kourakis CJ, Blue and Doyle JJ.

The central legal issue before the court was the construction of section 29(1) of the Criminal Law Consolidation Act (CLCA), which relates to dangerous driving. Specifically, the court considered whether knowledge that conduct was *likely* to endanger life was a necessary element of the offence, or if merely appreciating that it *might* do so was sufficient. The court also considered whether directions concerning recklessness were capable of affecting the jury's verdict, given the prosecution's case that the appellant deliberately drove into the police vehicle.

The court determined that an element of section 29(1) of the CLCA is that the defendant must know their conduct is *likely* to endanger life, and that it is not sufficient to prove only that the defendant appreciated the possibility of danger. The court allowed the appeal on this ground, finding it unnecessary to determine other grounds or the issue of recklessness directions.

The convictions were set aside, and a new trial was directed on all counts.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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)

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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