R v Stott

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v STOTT
[2011] SASCFC 145
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Blue)
6 December 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - GENERALLY
Appeal against conviction - appellant charged with the offences of aggravated creating risk of harm (count 1), aggravated endangering life (count 2) and aggravated creating risk of serious harm (count 3), pursuant to sub-sections 29(3), 29(1) and 29(2) of the Criminal Law Consolidation Act 1935 (SA) respectively - the incidents giving rise to these charges occurred on and near Port Road, Hindmarsh - the appellant pleaded not guilty to all three counts - the jury returned verdicts of not guilty in relation to counts 1 and 2 and returned a verdict of guilty in relation to count 3 - where count 3 was an alternative to count 2 - where the appellant submitted to the District Court Judge that there was no case to answer - whether the Judge should have concluded that there was no case to answer - whether the verdict was unsafe and unsatisfactory.
Held: (Gray J and David J agreeing) Appeal dismissed - the Judge did not err in rejecting the appellant's submission that there was no case to answer - taking the evidence at its highest, the evidence was such as to allow the jury to return verdicts of guilty to counts 1 and 2 or, as an alternative, to count 3 - the verdict was not unsafe and unsatisfactory.
(Blue J, in dissent) No reasonable jury could have been satisfied beyond reasonable doubt that the defendant possessed the requisite state of mind for count 3.
Criminal Law Consolidation Act 1935 (SA) s 19A(3), s 29 and s 353, referred to.
R v Prasad (1979) 23 SASR 161; Doney v The Queen (1990) 171 CLR 207; R v Nguyen (2010) 242 CLR 491; Re Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; R v Bilick & Starke (1984) 36 SASR 321; Ayles v The Queen (1993) 66 A Crim R 302; SKA v The Queen (2011) 85 ALJR 571; M v The Queen (1994) 181 CLR 487; Knight v The Queen (1992) 175 CLR 495; R v Dimitropoulos [1992] SASC 3625 (Unreported, King CJ, Olsson, Mullighan JJ), considered.

R v STOTT
[2011] SASCFC 145
Court of Criminal Appeal: Gray, David and Blue JJ
GRAY J:

This is an appeal against conviction.
The defendant and appellant, Andrew James Stott, was charged on information in the District Court with three offences against section 29 of the Criminal Law Consolidation Act 1935 (SA): the offence of aggravated creating risk of harm;[1] the offence of aggravated endangering life;[2] and, the offence of aggravated creating risk of serious harm.[3]
[1]    Criminal Law Consolidation Act 1935 (SA) section 29(3).
[2]    Criminal Law Consolidation Act 1935 (SA) section 29(1).
[3]    Criminal Law Consolidation Act 1935 (SA) section 29(2).
The defendant pleaded not guilty to all charges. Following a trial before judge and jury, verdicts of not guilty were returned on the first two counts and a majority verdict of guilty was returned on the count of aggravated creating risk of serious harm. It is from that verdict that the defendant has now appealed.
It is convenient at the outset to set out the relevant terms of section 29:
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.
Maximum penalty:
(a)     for a basic offence—imprisonment for 15 years;
(b)     for an aggravated offence—imprisonment for 18 years.
(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.
Maximum penalty:
(a)     for a basic offence—imprisonment for 10 years;
(b)     for an aggravated offence—imprisonment for 12 years.
(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,
the person is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 5 years;
(b)     for an aggravated offence—imprisonment for 7 years.
The particulars provided in regard to the count of aggravated endangering life were as follows:
Andrew James Stott on the 18^th day of March 2009 at Hindmarsh, without lawful excuse drove a motor vehicle on Port Road, knowing that the act was likely to endanger the life of Gail Smith, and intending to endanger Gail Smith’s life or being recklessly indifferent as to whether Gail Smith’s life was endangered.
It is further alleged that Andrew James Stott committed the offence against a Police Officer knowing her to be acting in the course of her official duty.
The particulars provided in regard to the count of aggravated creating risk of serious harm were as follows:
Andrew James Stott on the 18^th day of March 2009 at Hindmarsh, without lawful excuse drove a motor vehicle on Port Road, knowing that his act of driving was likely to cause serious harm to Gail Smith and intending to cause such serious harm to Gail Smith, or being recklessly indifferent as to whether such harm was caused.
It is further alleged that Andrew James Stott committed the offence against a Police Officer knowing her to be acting in the course of her official duty.
It is to be understood that the count of aggravated creating risk of serious harm was an alternate charge to the count of aggravated endangering life.
The prosecution case was that on the evening of 18 March 2009, events occurred which gave rise to the three counts on the information. Constables Smith, Dawson and Koch chased a man on foot in a southerly direction across Port Road, Hindmarsh. This man ran into the car park of the Entertainment Centre. The police called out for the man to stop, but the calls were ignored. The man then entered a maroon coloured Land Rover Discovery, drove from the car park, turned left onto Adams Street and then left onto Port Road.
The first count of aggravated creating risk of harm related to the manner of driving in the Entertainment Centre car park. On this charge, as noted above, a verdict of not guilty was returned.
As the Land Rover Discovery was leaving the car park, Constable Smith had taken up a position in the southern lane of the westbound carriageway on Port Road. This is the lane nearest to the kerb and furthest from the median strip. There were three lanes for westbound traffic. Constable Smith was in uniform and was directing traffic. She anticipated that the Land Rover Discovery would travel in her direction.
It was the prosecution case that the defendant was the driver of the Land Rover Discovery. It was said that the defendant, having driven onto Port Road proceeded west in the southern lane of the westbound carriageway and drove his vehicle directly at Constable Smith. She stood with her arm raised straight from her shoulder with the palm of her hand facing forward towards the defendant. She shouted loudly “police stop”. Other vehicles travelling on the westbound carriageway stopped or slowed. Constable Smith allowed these vehicles to pass while continuing to shout her direction to the defendant. The defendant continued to drive his vehicle directly at Constable Smith.
Constable Smith described the defendant’s vehicle as “getting really close” to her. Her estimate of the vehicle’s speed at this time was about 60 kilometres per hour. Constable Smith believed that the defendant was not going to stop and she jumped and moved to her right to the footpath. At or about the same time, the defendant’s vehicle changed direction, swerving to its right, cutting across two lanes of traffic, causing embarrassment to other vehicles and requiring another vehicle to perform an emergency stop. The defendant then continued to drive west on Port Road.
As the defendant continued west, he was confronted by a police vehicle parked at the intersection of Port and South Roads. He pulled into a car park at the Hope Inn Hotel, left his vehicle and walked toward Port Road. He was detained by a police officer and taken to a police station. The defendant underwent a breath analysis test and returned a blood alcohol reading of 0.12.
The defendant gave evidence. It was the defence case that he had been at the Governor Hindmarsh Hotel on the evening of 18 March 2009. Before leaving home, he had two non-standard spirit drinks. When at the hotel, he had two pints of Coopers Lager. When he left the hotel, he crossed Port Road to the Entertainment Centre car park. He was unaware of any police in the car park or any police directions being given to him. His account was that having turned onto Port Road, he was unaware of any police, and in particular, was unaware of Constable Smith being present or directing him in anyway. His case was that he moved across the two lanes to travel in the lane nearest to the median strip and that he caused no embarrassment to any other road user in doing so. He wanted to move to that lane to be able to observe what was going on at the Governor Hindmarsh Hotel.
At trial, the prosecution witnesses were subjected to close and searching cross-examination on many topics including their alleged identification of the defendant in a car park on the eastern side of Port Road. The prosecution witnesses claimed that the defendant had been observed in that car park in suspicious circumstances and was then chased across Port Road into the Entertainment Centre car park where he entered the Land Rover Discovery and immediately drove away. It was suggested that the prosecution witnesses were fabricating their evidence. It was suggested that the prosecution witnesses were dishonest in their accounts of the events in the Entertainment Centre car park and the events on Port Road.
The defendant acknowledged being the driver of the Land Rover Discovery, of having driven from the Entertainment Centre car park onto Adams Street and then onto Port Road. The defendant accepted that he had been drinking earlier that evening and that his blood alcohol level, when tested at about 11:00 pm, revealed a blood alcohol content of 0.12.
The Judge declined to accept the defendant’s submission that he find that there was no case to answer. The Judge provided reasons for his decision:
The accused is charged with one count of aggravated creating risk of harm, one count of aggravated endangering life, and as the alternative to that count of aggravated endangering life, one count of creating aggravated risk of serious harm.
The relevant act in the case of all counts is an act of driving. I shall not repeat the facts. The prosecution has closed its case and [counsel for the defendant] has submitted that there is no to answer.
I have applied the following test in deciding whether or not there is a case to answer, the test stated in Billick (sic) and Starke namely, and I quote: ‘On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open are drawn, is the evidence capable of producing, in the mind of a reasonable person, satisfaction beyond reasonable doubt of the guilt of the accused?’.
In count 1, taken at its highest, the Crown case is that the accused reversed his four-wheel drive motor vehicle at a time when a police officer was standing immediately behind the vehicle. There is evidence from which the jury could infer that the accused knew that there was somebody standing immediately behind the vehicle.
[Counsel for the defendant’s] submission of no case was made on the basis that the prosecution could not prove beyond reasonable doubt that that act of driving was likely to cause harm. In my view, while I regard the prosecution case as weak, there is a case to answer because I think it is open to the jury to infer, if one takes the prosecution case at its highest, that there was in fact a likelihood of some harm.
So on count 1, I find that there is a case to answer.
His Honour then turned to count 2:
I have had more difficulty with [counsel for the defendant’s] submission that there is no case to answer to count 2.
On that count, the relevant act is the accused’s driving immediately before he swerved and, by that swerve, avoided colliding with Police Constable Smith. Again, taking the Crown case at its highest, the accused, with a blood alcohol reading of 0.12, drove at 60 km/h towards a police officer standing on the roadway waving at him to stop. He drove in that fashion until he swerved when his motor vehicle was some five metres from the police officer.
The main difficulty I have had with this submission is whether or not there is evidence upon which a jury could infer that, at a stage before he swerved, the accused knew that the police officer was on the roadway.
In the end, I have come to the view that there is evidence upon which a jury could make that inference because the accused had driven some little distance down Port Road and the jury could infer that a driver would be looking at the road ahead and would have seen Constable Smith.
In my view, the jury could also infer that there was a likelihood that her life would be endangered or that she would suffer some risk of harm. Accordingly, I find that there is a case to answer. Again, I think, and I mention it, that the prosecution case is weak when one looks at all of the evidence. In my ruling, I have done what I am required to do and taken the prosecution case at its highest. So I find that there is a case to answer on each of the three counts.
The Judge, however, offered the jury the option of stopping the trial and bringing in verdicts of not guilty on all counts. This offer was made to the jury at the close of the prosecution case. The Judge delivered what is known as a Prasad direction.[4] Having discussed the procedure, the Judge then provided the following explanation and information to the jury:
[4] R v Prasad (1979) 23 SASR 161.
I am going to explain briefly why I have decided to accord you this opportunity in this case but first, I can say this: you may think at this stage that the accused drove his car after he had been drinking on the night in question because we have heard that he was breathalysed and that there was a positive reading. He is not charged in this Court with a drink-driving offence and you should not speculate whether or not he has been dealt with elsewhere for that. He is not charged with drink-driving. You must not assume, or must not reason that because he was driving when he should not have been because he was drinking, that he was the sort of person who would commit these offences with which he is charged. So do not reason that way. That is important and that is why I mention it at this stage.
I am giving you the opportunity to return verdicts of not guilty for these reasons. There are three offences – or two, because there is one in the alternative. The offence of creating risk of harm by allegedly reversing into Constable Koch in the car park, and the offence of endangering Constable Smith’s life by driving towards her on Port Road. Now there is an alternative offence but the facts are the same.
Ladies and gentlemen, the evidence in respect of reversing into Constable Koch depends upon his evidence and that of Dawson. Only those two people say that they saw anything relevant to that. The evidence in respect of the driving towards Smith endangering her life depends entirely upon the evidence of Constable Smith. Regardless of what Koch may have said in his declaration, his evidence in this Court is that he did not see that, and Dawson did not ever say that she saw it.
So you would have to be satisfied to convict that those three witnesses have given you accurate, reliable evidence. The facts, as I said at the beginning, are for you, they are not for me and I impress that upon you. But it seems to me that there are aspects of their evidence about the whole case which might give you grave cause for concern about whether or not you can rely upon any of them.
Having said that, let me remind you that in the case of count 1, that is the alleged reversing into Koch, Mr Koch’s evidence was first, that he chased the man the prosecution says is the accused, that that man unlocked the door of the four-wheel drive, got into it, that Koch reached the car just as the engine started, that he tapped on the back window – and we do not know what that means, ‘back window’, that is all the evidence that we have – and that he called out ‘police’. Constable Koch said that the man, the driver, stated the engine as Koch started yelling. So the effect of the evidence is that Koch is at a back window of the car, I suppose it could be a side window, we do not know, it is just a back window of the car, and that while he is tapping on a back window, the car reverses. But ladies and gentlemen, at another place in his evidence he said ‘The car reversed towards me about two metres’. Now it is a matter for you. You may think that that does not fit with standing at the back window.
When she was cross-examined, Dawson agreed with the proposition that [counsel for the defendant] put to her. He said ‘You see, what you said before was that the vehicle reversed, Koch ran up to it, banged on the window and then it went forward’. She agreed with that. That means the reversing happened, on one section of her evidence, before Koch got to the car.
I point those out to you. It is a matter for you but if you consider those matters with respect to that, you might think that the prosecution has not proved its case. But it is for you not for me. I keep repeating that and I hope you have understood it. I am simply now telling you that you have the right, if you wish, to stop this case now by returning verdicts of not guilty.
With respect to the other count and its alternative, the count in respect of Constable Smith, her evidence was that she was standing in front of Enzo’s, she was at Enzo’s. You know that cannot be very far down from the Port Road turning – there is Channel 7 and then there is Enzo’s – and you have got the plans if you want to look at that. Her evidence is that she went from the kerb on the Entertainment side, towards the middle of the kerbside lane. So she said she went towards the middle of the lane nearest the kerb. She stopped a number of cars in all three lanes and then she let those cars go through.
You may think, ladies and gentlemen, it is a matter for you, that she would have had to stand back much closer to the kerb to let traffic get past her. There is no evidence that she ever moved out from that position again.
She then says that she saw the car coming towards her and it was at that stage she said she could recognise and see the face of the driver. She did not have a torch, but she was in uniform. When the car was about five metres from her, it swerved and avoided her.
Ladies and gentlemen, before you could find Mr Stott guilty, you would have to be satisfied beyond reasonable doubt that before he swerved, he knew that she was standing on the road, because the act of driving, the subject of the charge, is the driving immediately before the swerve. Obviously he knew she was there then because he swerved. If you think it is a reasonable possibility that he had not noticed her until he swerved, you would have to find him not guilty.
Very briefly – there may be other aspects of the evidence that persuade you otherwise – those are matters that seem to me to put serious obstacles in the way of the prosecution case. As I say, it is not for me, it is for you. All I am saying now is that you do have, because we have reached the end of the prosecution case, the right to end the case by returning verdicts of not guilty.

The jury, having considered the Prasad option, informed the Judge that they were not unanimously agreed on their verdicts on either count 1 or count 2. The trial proceeded.
In the course of summing up, the Judge directed the jury as to the elements of each of the three counts. In respect to count 3, the count of aggravated creating risk of serious harm, the count on which a verdict of guilty was returned, the Judge identified those elements as follows:
To prove an offence of creating risk of serious harm the prosecution must prove that:
1.Mr Stott consciously and deliberately performed an act that was likely to cause serious harm to Constable Smith. The relevant act again is his driving towards her on Port Road immediately before - and I emphasise ‘before’ - he swerved. An unconscious, accidental and non-deliberate act is insufficient. His driving need not, in fact, cause serious harm; again it is sufficient for the prosecution to prove that his driving was likely to cause serious harm to her in the manner I have already explained. It is a matter for your judgment whether his driving was, in fact, likely to cause serious harm to her.
Ladies and gentlemen, serious harm is harm that consists of, or results in, serious and protracted impairment of physical or mental function, or harm that consists of or results in serious disfigurement.
2.The prosecution must prove that at the time of driving towards her on Port Road, if you find that he did so, Mr Stott knew that his driving was likely to cause serious harm to Constable Smith.
3.The prosecution must again prove that Mr Stott either positively intended to cause serious harm to her, or was recklessly indifferent as to whether his driving towards her could cause serious harm to her.
He will have been recklessly indifferent if he was aware of a substantial risk that his driving could result in serious harm to her and he went ahead and drove in that way, despite the risk and without adequate justification.
4.The prosecution must prove that the relevant act of driving was without lawful excuse. Again there is here no suggestion that there was any lawful excuse for deliberately driving at her, if you find that he did so, and I say no more about that.
Ladies and gentlemen, I mentioned earlier that each of the three counts is an aggravated offence and I now go back to that aspect of the charges. In the case of each of the two offences charged and count 3, the alternative to count 2, the offence will have been aggravated if, at the time of the relevant act of driving, Mr Stott knew that the police officer into whom he reversed or at whom he drove, if you find that he did so, was a police officer acting in the course of his or her official duty.
On the topic of intoxication, the Judge provided the jury with the following directions:
Ladies and gentlemen, let me now say something fairly briefly about intoxication. Intoxication resulting from voluntary drinking does not of itself provide a defence to a criminal charge. A person must answer when sober for what he does when drunk. It is no defence that the accused would not have done what he did, or form the intention or state of mind that he may have formed if he had not been intoxicated. Nevertheless, Mr Stott’s intoxication, if you find that he was intoxicated, may affect your deliberations in a number of ways. It is of course a matter for you to decide whether or not he was intoxicated and I will come back to that shortly.
His intoxication is relevant in considering whether he had the intention which I have told you is an ingredient of the various charges, or whether he was reckless in the way that I have explained to you. The inferences about intention and recklessness which may be drawn in the case of a sober person from his actions may not be as readily drawn in the case of an intoxicated person.
I am sure you all know that alcohol can dull our senses. It can cloud or confuse our perceptions of our surroundings and the behaviour of other people. So when you are considering with what intention or state of mind the accused acted, you will bear in mind the effect, if any, of the influence of alcohol upon his mind. As I have mentioned, you will bear in mind intoxication when considering both intention and recklessness. I remind you that he will have been reckless in causing harm, endangering life or causing serious harm if he was aware that there was a substantial risk that his driving could result in harm or putting life in endanger or causing serious harm, and he went ahead and drove the way he did, despite the risk and without adequate justification.
So when you are considering, if you get to that stage, whether or not he was aware that there was a substantial risk, then you should consider the effect that intoxication may have had on his awareness of his actions and his surroundings.
Mr Stott’s intoxication at the time may also affect your estimate of his credibility and reliability as a witness here in the witness box. It may also affect your assessment of the accuracy of his perception at the time the events were occurring.
Well, then, having given you the general direction about intoxication, let me remind you of the evidence of it. If you are satisfied that Mr Stott was intoxicated, then his intoxication could be relevant in a number of ways, being those I have just mentioned.
The evidence of intoxication is this: Mr Stott told us in evidence that he had had two non-standard spirit drinks, Jack Daniels, at home, before he went to the Governor Hindmarsh Hotel, and that while at that hotel, he drank two pints of Coopers beer, lager he called it. We know that very shortly after he was arrested at the Hope Inn hotel, he tested positive for alcohol and that at about quarter to 11 at the Parks Police Station he was breathalysed and the reading was 0.12 g of alcohol in 100 mm of blood. It is a matter for you to decide but you may have little difficult in concluding that he was affected to some extent by alcohol. It is a matter for you.
I repeat a direction I gave you earlier: you know that Mr Stott returned that positive blood alcohol reading and that he pleaded guilty to a drink-driving offence. You should take into account his intoxication, if you find him intoxicated, in the ways I have just mentioned, but you must not use the evidence of intoxication in this way: you must not reason that because he drove his car while there was present in his blood more alcohol than the law permits, that he is therefore the sort of person who would commit any of the offences charged against him. That reasoning would be both illogical and unfair and you must not reason in that way.
During the course of the summing up, the Judge returned to the elements of count 3 and in particular to the evidence relevant to that count. In that respect, the Judge addressed counts 2 and 3 together. Both counts, as noted above, related to the allegations concerning the defendant driving at Constable Smith. The Judge’s summing up was in the following terms:
I go then to counts 2 and 3, which involve the same act of driving. Again before you could satisfied that the accused was guilty of count 2, or in the alternative count 3, you would have to be satisfied beyond reasonable doubt of the elements of the offence as I’ve described them to you. The prosecution case for count 2 - and I will refer to it as count 2 but it could be count 3 in the alternative - the prosecution case relies solely, only, on the evidence of Constable Gail Smith. Dawson did not give any evidence that she saw anything happen on Port Road, and in his evidence here in court, Koch specifically said he did not see her in the middle of Port Road. So there is no other evidence; there is only hers.
In the case of these two counts, the relevant act is the act of driving immediately before the accused swerved the car, because of course, ladies and gentlemen, once he swerved, he could not have been intending to hit her or aware of the risk and going on anyway, pressing on regardless, as he was obviously trying to avoid her, even on her evidence. So the relevant act of driving is the driving immediately before he swerved. Before you could convict him of either of those counts, you would of course have to be satisfied that he knew that his driving towards her was likely to endanger her life or cause her serious harm; that is, you would have to be satisfied beyond reasonable doubt that he knew his driving created a real or substantial risk to her life or of doing her serious harm.
Of course, you would also have to be satisfied that he intended to endanger her life or cause her serious harm, or that there was a substantial risk that his conduct would result in endangering her life or causing her harm, and that he went ahead and engaged in this driving despite the risk and without adequate justification.
Of course, you would also have to be satisfied beyond reasonable doubt to convict him that at that time of driving, that is before he swerved, he knew that she was on the roadway. Constable Smith’s evidence was she saw the accused’s car enter Port Road from Adam Street. She then went into the kerbside lane; that is, the lane nearer the footpath on Port Road. She went towards the middle of the road - she did not say she was in the middle of the lane - and she made a signal for traffic to stop. The effect of her evidence seems to be that she was standing in the kerbside lane, but not right in the middle of that lane, so she must have been more slightly towards the kerb at least. She then said that cars in all three lanes stopped. Next, she said that, because she did not want to stop those cars, she let them go forward and proceed down Port Road. If, as must be the case on her evidence, there was at least one car - at least one car - stopped in the kerbside lane, the one in which she was standing, you might think that she should have moved back fairly close to the kerb to let it go on its way. That is the last evidence we have from which you can make any inference about her position on the roadway before she says the accused’s car came towards her. Because there is no evidence from her that she moved further out into that kerbside lane again, the effect of her evidence seems to be that she must have been fairly near to the kerb when she says she signalled the accused to stop.
A little later the Judge further observed:
You will remember her evidence that the car swerved when it was about five metres from her. Ladies and gentlemen, I emphasis [sic] again that the relevant act of driving upon which the prosecution relies is the accused’s driving just before he swerved. If you think that, for some reason, perhaps his intoxication, he did not see her until he swerved, then you could not find him guilty of this count because you could not be satisfied beyond reasonable doubt that, at the time of that bit of driving, before the swerve, he even knew she was there.
Even if you reject his evidence of the time when he says he moved his vehicle towards the medium strip, if you think it is reasonably possible that he simply did not see her until just before he swerved, then the elements of the offence would not have been proved beyond reasonable doubt and you will have to find him not guilty.
[Emphasis added.]
The jury did not acquit on count 3. It follows that in accordance with the above direction the jury must have concluded that the defendant saw Constable Smith some time before he swerved.
In the course of the summing up, the Judge made repeated references to the possibility that the prosecution witnesses were not credible or reliable. He emphasised many points that had been made in the address of defence counsel. The members of the jury were well aware of the complaints advanced by defence counsel and the Judge’s independent warnings to them of the need for them to be careful in the assessment of that evidence. An example is to be found in the following observations of the Judge:
What I am saying is, regardless of what you might think of the defence case, you must analyse very, very carefully the evidence of Koch and Dawson about the alleged act of reversing, and the evidence of Smith about the alleged act of deliberately driving towards her, as she was on the roadway.
[Emphasis added.]
There was no complaint made to the Judge by counsel during or following the summing up as to any inaccuracy, misstatement or inadequacy in the summing up.
On appeal, it was submitted that the Judge should have concluded that there was no case to answer. It was further submitted that, in any event, the verdict was unsafe and unsatisfactory.
No Case to Answer
The test to be applied in determining whether the prosecution evidence establishes a case to answer was referred to by this Court in Prasad:[5]
It is fundamental to trial by jury that the law is for the judge and the facts for the jury. If there is no evidence which would justify a conviction then, as a matter of law, there must be an acquittal. That decision is for the judge and the jury must accept and act on his direction on that question of law. If, however, there is evidence which is capable in law of supporting a conviction, a direction to the jury to acquit would be an attempt to take from them part of their function to adjudicate upon the facts.
As the Court pointed out in Questions of Law Reserved on Acquittal (No. 2 of 1993),[6] this view of the law was endorsed by the High Court in Doney.[7] In Bilick and Starke, King CJ adapted the test to a circumstantial case:[8]
Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?
Further guidance was provided by King CJ in Questions of Law Reserved on Acquittal (No. 2 of 1993):[9]
It follows from the principles as formulated in Bilick (supra) in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence: Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410; Thorp v Abbotto (1992) 34 FCR 366. He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.
[5]    R v Prasad (1979) 23 SASR 161, 162-163.
[6]    Questions of Law Reserved on Acquittal (No. 2 of 1993) 61 SASR 1, 4.
[7]    Doney v The Queen (1990) 171 CLR 207.
[8]    R vBilick and Starke (1984) 36 SASR 321, 337.
[9]    Questions of Law Reserved on Acquittal (No. 2 of 1993) 61 SASR 1, 5.
As noted above, when giving his ruling on the no case to answer submission, the Judge referred to relevant authority and directed himself correctly as to matters of law. In my view, taking the prosecution case at it highest, there was a case to answer made out on counts 1 and 2, and the alternative count 3. The evidence led by the prosecution, if accepted, would establish that the defendant was well aware that he was being chased by police and well aware of police warnings to stop. Taking the evidence at its highest, the evidence was such as to allow the jury to return verdicts of guilty to counts 1 and 2 or, as an alternative, to count 3. In my view, there is no substance to this complaint.
Unsafe and Unsatisfactory
In Nguyen, Hayne, Haydon, Crennan, Kiefel and Bell JJ reaffirmed the approach to be taken by an appellate court when addressing a submission that a verdict was unsafe and unsatisfactory:[10]
[10] R v Nguyen (2010) 242 CLR 491, [33].
The task of an appellate court in considering whether a verdict of guilty returned by a jury "should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence" was described by this Court in M. As four members of the Court pointed out in M, the conclusion that a verdict should be set aside on this basis is often expressed in terms of the verdict being "unsafe or unsatisfactory", "unjust or unsafe" or "dangerous or unsafe". The question for the appellate court is one of fact.
"[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
As the plurality in M went on to point out:
"But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
The authoritative guidance which this Court provided in M about the task of a court of criminal appeal was expressed in the following terms:
"It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
[Footnotes omitted.]
In my view, the evidence before the jury was sufficient to support the verdict of guilty on count 3. It was open to the jury to accept the evidence of Constable Smith. The evidence from this witness was direct evidence about the incident. Her evidence, if accepted, established that the defendant drove directly towards her in such a manner that she considered her personal safety to be in jeopardy. At the time, she was in uniform in a well lit area of roadway and was confronted by an approaching four-wheel drive vehicle. On her evidence, the vehicle swerved to its right at or about the time that she jumped and moved in an attempt to avoid being struck by the vehicle. Her estimate was this occurred when the vehicle was about five metres from her position on the roadway. The vehicle was accelerating to a speed that she estimated to be 60 kilometres per hour.
The critical events to be analysed are those that occurred before the vehicle swerved. The defendant, on Constable Smith’s evidence, would have had her in his line of vision as she stood within the lane in which he was travelling. He was at this time driving directly towards Constable Smith. On her evidence, the defendant swerved at the last moment. The question that arises is whether the defendant formed the intention to swerve to avoid Constable Smith at the moment he first saw her on the roadway. If this was the conclusion to be reached in accordance with the earlier direction of the Judge a verdict of not guilty would have been returned. It was open, however, for the jury to infer that the defendant had seen Constable Smith earlier and travelled directly towards her before making a decision at the last moment to swerve. It is apparent that the jury reached this conclusion.

The defendant’s account that he did not see Constable Smith at all and that his manoeuvre to the right was to be positioned in the lane nearest to the median strip to make observations of what was going on at the Governor Hindmarsh Hotel was open to be rejected by the jury.
The advantage that the jury had in seeing and hearing the evidence was of particular importance. They observed Constable Smith being closely cross-examined. The jury had the advantage of a view to assist their understanding of the evidence. They were carefully directed by the Judge as to relevant matters concerning Constable Smith’s credibility and reliability and all appropriate warnings were given. They also had the opportunity of observing the defendant give evidence and were carefully directed about that evidence and the good character evidence that was led on his behalf.
Having regard to all of the foregoing matters, I reject the submission that the verdict on the alternate count, count 3, of aggravated creating risk of serious harm was unsafe or unsatisfactory.
Conclusion
I would dismiss the appeal.
DAVID J: I would dismiss the appeal and I agree with the reasons of Gray J. In my view, the jury were carefully and properly directed by the trial Judge in relation to the law and the facts. The Judge made it clear in the passage cited above by Gray J that if the appellant did not see V until he swerved, then the jury could not find him guilty. As a result of that clear direction, the jury must have come to the conclusion that he drove for some distance whilst seeing her before swerving. It was that driving that the jury concluded made out the charge for which the appellant was convicted.
Matters such as times and distances carefully set out the judgment of Blue J were matters which, in my view, lay in the province of the jury having heard all the facts and being properly directed.
I would dismiss the appeal.
BLUE J: The appellant defendant was charged with, inter alia, aggravated creating risk of serious harm by driving a motor vehicle on Port Road at a constable knowing that it was likely to cause serious harm and intending or being recklessly indifferent as to whether such harm was caused.[11]
[11] Criminal Law Consolidation Act 1935 (SA) s 29(2).
The defendant was convicted by a jury in the District Court and appeals against that conviction.
Background Facts
The relevant events occurred around 10.00pm on 18 March 2009 (“the night”) in and around Port Road, Hindmarsh.
Prelude
The prosecution case at trial was that, shortly before the relevant events on Port Road, the defendant committed a series of offences in the car park of the Housing Industry Association (“HIA”) on the opposite, northern, side of Port Road. These offences involved criminal trespass and damaging the padlock and chain on the gate at each end of the car park. Constables Smith and Dawson attended at the scene.
While the defendant was not charged with committing these offences, the prosecutor in his opening address to the jury addressed these events at length as an integral part of the events which occurred on the night.
For reasons which will become apparent, the question whether it was open to the jury to be satisfied that it was the defendant who committed these offences needs to be considered on to the question whether the verdict was unsafe or unsatisfactory. I return to the detail of the events in the HIA car park later.
Constable Smith gave evidence that, some minutes after the events in the HIA car park, she saw a man crossing Port Road from the Governor Hindmarsh Hotel (which is next to the HIA) towards the Entertainment Centre. He was wearing a long-sleeved white dress shirt and dark pants. She saw him enter a large red vehicle in the Entertainment Centre car park. At that point, he was 50 to 70 metres away and she turned back to Port Road. It was the prosecution case that this man was the defendant.
Evidence was given by Constable Dawson and a third constable that they saw a man wearing a white dress shirt and dark pants enter a red Land Rover Discovery in the Entertainment Centre car park, and drive away. The third constable gave evidence that the vehicle reversed back a couple of metres towards him but Constable Dawson said to her observation the vehicle did not reverse at all. This was the subject of a charge of aggravated creating risk of harm, but the jury acquitted the defendant of this charge and it need not be considered further.
Port Road
Constable Smith testified that at about 10.00pm she took up position on the footpath in front of the Argentinean Bar and Grill on Port Road, watching for the large red vehicle she had seen in the Entertainment Centre car park. That restaurant was on the same side of Port Road as the Entertainment Centre, but to the east. Immediately to the east again was Channel 7, which was located on the corner of Port Road and Adam Street. At that point, Port Road has three lanes for westbound traffic and a parking lane outside the Bar and Grill as depicted in exhibit P4.
Constable Smith testified that:
1.she saw a large red vehicle exit the Entertainment Centre car park onto Adam Street and lost sight of the vehicle behind the Bar and Grill and Channel 7 buildings;
2.she saw the vehicle come into view as it rounded the corner out of Adam Street into Port Road;
3.the vehicle proceeded in the outermost lane westwards along Port Road towards her;
4.she stepped out into the outermost of the three traffic lanes, put up her arm and shouted “police stop”;
5.cars stopped in each of the three westbound lanes before they reached her;
6.she waved those cars on and, while she did not say so, she must necessarily have stepped back out of the outermost lane into the parking lane or onto the footpath to permit the car or cars in that lane to drive on;
7.the cars drove off and, while she did not say so, she must necessarily have stepped back out into the outermost lane;
8.she put up her arm and shouted “police stop” and the large red vehicle continued driving towards her, travelling at a speed she estimated to be approximately 60 kph;
9.at “the last minute”, the vehicle veered to its right into the innermost lane and then kept driving westwards down Port Road;
10.at about the same time, she stepped back towards and then onto the footpath;
11.she estimated that the vehicle was about five metres in front of her at the point at which it swerved to its right and at which she jumped back.
It was the prosecution case and common ground on appeal that the large red vehicle was the defendant’s Land Rover Discovery and that the defendant was the driver of the vehicle.
The defendant gave evidence that he drove his red Land Rover Discovery out of the car park at the Entertainment Centre onto Adam Street at about 10.00pm, turned left into Adam Street and then left again into the outermost lane of Port Road proceeding westwards, and then changed lanes to the innermost lane. He said that he did not see the constable standing on Port Road, and veered to the right to see what was happening on the other side of the road outside the Governor Hindmarsh Hotel.
It was common ground that the defendant then proceeded further down Port Road to its intersection with South Road, at which point he saw a police car and pulled into a car park. He was then apprehended by police, subjected to a breath analysis test and arrested. His breath analysis reading was 0.12 per cent.
The defendant also testified that he was 36, of good character and had no previous convictions. He called two witnesses to attest to his good character.
Exhibit P4 comprises an aerial photograph of the relevant area. It shows the intersection of Adam Street and Port Road at a sharp (45 degree) angle. It shows the Channel 7 building on the corner of that intersection, with the Argentinean Bar and Grill adjoining it. The scale of the aerial photograph (including vehicles pictured on the roads) indicates that the distance from the Adam Street/Port Road intersection to the front of the Argentinean Bar and Grill is approximately 80 metres.
A vehicle travelling at a constant speed of 60 kph over 80 metres takes approximately 5 seconds to travel that distance. A vehicle travelling at a constant speed of 30 kph takes approximately 10 seconds to travel that distance.
Conduct of case at trial
At the conclusion of the prosecution case, the defendant submitted that there was no case to answer. The trial Judge in his ruling said that he had experienced difficulty in determining whether there was evidence upon which a jury could infer that, at a stage before he swerved, the defendant knew that Constable Smith was on the roadway, but in the end he had come to the view that there was such evidence. He found that there was a case to answer, but explicitly stated that the prosecution case was weak.
The trial Judge was then invited to give to the jury a “Prasad direction”, and he acceded to that request. The trial Judge said that it was rare and exceptional for such a direction to be given, the prosecution needed to prove beyond reasonable doubt that, before he swerved, the defendant knew that Constable Smith was standing on the road and that seemed to him to put serious obstacles in the way of the prosecution case. The foreperson of the jury reported that the jury was not unanimously agreed upon a verdict of not guilty at that point in the trial.
The defendant then gave evidence and called two character witnesses.
The principal focus of the prosecutor’s closing address to the jury was an attack on the credibility of the defendant’s evidence and effectively an invitation to the jury to prefer the evidence of Constable Smith over the evidence of the defendant in respect of the alleged offence on Port Road. Conversely, the principal focus of the closing address to the jury by the defendant was an attack on the credibility of Constable Smith and an invitation to the jury not to be persuaded beyond reasonable doubt that they should prefer her evidence over the evidence of the defendant.
While some references were made to the fact that acceptance of the prosecution witnesses did not necessarily lead to a finding of guilt, neither counsel addressed in detail the sequence of events referred to above or the limited distance and time over which those events occurred.
The jury unanimously found the defendant not guilty of the count in respect of the Entertainment Centre car park, but by a majority found him guilty of the count in respect of Port Road.
Grounds of appeal
The defendant appeals, essentially, on 2 grounds:
1.accepting the evidence of Constable Smith in all respects as to the events on Port Road, there was no basis on which a jury could have concluded beyond reasonable doubt that it should draw the inference that the defendant consciously and deliberately drove his vehicle towards Constable Smith knowing that it was likely that his vehicle would hit her and cause her serious harm and exclude all other hypotheses consistent with innocence;
2.in the alternative, the evidence of Constable Smith was unreliable, it should not have been accepted that it was the defendant who was found in the HIA car park prior to the events on Port Road and a conviction based on her evidence was unsafe and unsatisfactory.
The first ground was put on the alternative bases that either the trial Judge should have ruled that there was no case to answer because the inference was incapable of being drawn on the prosecution case or else the verdict of the jury was unsafe and unsatisfactory because it was not open to the jury to draw the inference.
Elements of the offence
Section 29(2) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) provides:
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.
The offence created by s 29(2) is not an offence designed specifically to address the driving of a motor vehicle (in contrast see, eg, s 19A(3) cause harm by driving a vehicle recklessly, etc). The offence created by s 29(2) applies generally to conduct which is likely to cause serious harm to another person and embodies a very high level of mens rea, namely a conscious and deliberate act which the person knows is likely to cause that harm and either intends to cause, or is recklessly indifferent as to causing, that harm. This of course does not mean that the offence cannot be committed by driving a motor vehicle, but it means that s 29(2) will rarely apply to momentary conduct which occurs during the course of driving and which may constitute an offence specifically dedicated to driving a motor vehicle.
In the present case, the actus reus relied upon by the prosecution was driving the Land Rover Discovery in the outermost lane towards Constable Smith in a manner which objectively was likely to cause serious harm to Constable Smith. The mens rea relied upon by the prosecution was that the defendant:
1.knew that his driving the vehicle in the outermost lane towards Constable Smith was likely to cause her serious harm (i.e. that he saw her and was aware that, by reason of his continuing to drive towards her, it was likely that the vehicle would hit her and seriously harm her); and
2.he was recklessly indifferent as to whether or not the vehicle would hit her and seriously harm her.
Legal Principles
Unsafe or unsatisfactory verdict
Section 353 of the Act requires a guilty verdict to be set aside if it is unreasonable or cannot be supported having regard to the evidence or on any other ground there was a miscarriage of justice (often called by way of shorthand “unsafe or unsatisfactory”). This means that:
1.the question for the appellate court is one of fact which the court must decide by making its own independent assessment of the evidence;[12]
2.a verdict may be unsafe or unsatisfactory notwithstanding that, as a question of law, there is evidence upon which a jury might convict;[13]
3.the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;[14]
4.in most cases, a doubt experienced by an appellate court will be a doubt which a jury would also have experienced, unless a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt such that the court may conclude that no miscarriage of justice occurred;[15]
5.it is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred;[16]
6.if the evidence, upon the record itself, lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even when making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to set aside a verdict based upon that evidence;[17]
7.where an essential element of an offence depends upon inference from circumstantial evidence, it is only open to a jury to convict if there is no other inference consistent with innocence reasonably open upon the evidence;[18]
8.in assessing whether it was open to the jury to be satisfied beyond reasonable doubt that no inference consistent with innocence is reasonably open on the evidence, an appellate court is required to make its own assessment of the evidence;[19]
9.the fact that the jury may have disbelieved the defendant’s story does not entail drawing an inference that the defendant’s state of mind was that required by the offence or that other hypotheses consistent with innocence are excluded.[20]
[12] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 per Mason CJ, Deane, Dawson and Toohey JJ; SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571 at [22] per French CJ, Gummow and Kiefel JJ, [37]-[44] per Heydon J, [80] per Crennan J.
[13] M v The Queen (1994) 181 CLR 487 at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ; SKA v The Queen (2011) 85 ALJR 571 at [14] per French CJ, Gummow and Kiefel JJ, [42]-[43] per Heydon J, [78] per Crennan J.
[14] M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ, R v Nguyen (2010) 242 CLR 491; [2010] HCA 38 at [33] per Hayne, Heydon, Crennon, Kiefel and Bell JJ; SKA v The Queen (2011) 85 ALJR 571 at [11] per French CJ, Gummow and Kiefel JJ, [40] per Heydon J, [78] per Crennan J.
[15] M v The Queen (1994) 181 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ; SKA v The Queen (2011) 85 ALJR 571 at [13] per French CJ, Gummow and Kiefel JJ, [41] per Heydon J.
[16] M v The Queen (1994) 181 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ.
[17] M v The Queen (1994) 181 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ.
[18] Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495 at 502-503 per Mason CJ, Dawson and Toohey JJ.
[19] Knight v The Queen (1992) 175 CLR 495 at 503 per Mason CJ, Dawson and Toohey JJ.
[20] Knight v The Queen (1992) 175 CLR 495 at 504 per Mason CJ, Dawson and Toohey JJ.
In Knight v The Queen,[21] the issue at trial was the defendant’s state of mind on a charge of attempted murder, and specifically whether it was open to the jury to draw an inference that he intended to kill the person who he shot. Mason CJ, Dawson and Toohey JJ said:
The question which arose in the Full Court and which arises in this appeal is whether the verdict of the jury on the second count was unsafe and unsatisfactory. That question can, in the circumstances of this case, be rephrased to ask whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant fired, without an intent to kill, the shot which hit Salvo. In considering that question, the Full Court were required to make their own assessment of the evidence, within the limits imposed by the fact that they neither saw nor heard the witnesses. They were required to act upon that view of the facts which the jury were entitled to take having seen and heard the witnesses.
The evidence undoubtedly disclosed the existence of previous hostility between the appellant and Salvo… And the jury may well have disbelieved the appellant's story, having regard to the way in which he disposed of the gun, shaved off his moustache and, upon one view of the evidence, told lies to the police when first questioned about the events of the Tuesday evening.
Nevertheless, even assuming that the jury decided all of these matters against the appellant, it does not appear to us to be possible to exclude, as not being reasonably open on the evidence, the hypothesis or inference that the appellant did not fire the shot which hit Salvo with intent to kill…
The verdict of the jury obviously entails a finding that the rifle was not discharged accidentally, but the evidence, in our view, leaves it entirely open that the second shot was fired recklessly by the appellant without the intent necessary to sustain a charge of attempted murder. That possibility could not reasonably have been excluded by the jury, even if they were of the view that the evidence was also consistent with an intent to kill on the part of the appellant.
No doubt there were circumstances which were apparent only to the jury, such as the demeanour of the witnesses, the size and physique of the appellant in comparison with those of Salvo and the way in which the witnesses demonstrated how the appellant handled the rifle. But even accepting these matters to have been determined by the jury in a manner unfavourable to the appellant, it was nevertheless, in our view, not possible for the jury, acting reasonably, to have excluded as a rational inference the possibility that the second shot was fired without an intent to kill.[22]
[21] (1992) 175 CLR at 495.
[22] Knight v The Queen (1992) 175 CLR 495 at 503-505 per Mason CJ, Dawson and Toohey JJ.

In R v Dimitropoulos,[23] King CJ (Olsson J and Mullighan J agreeing) said:
I think that the presence of the fingerprints on the engine…is equivocal.
The appellant gave an explanation on oath. Miss Abraham has argued that it is incredible, but I don't think that it strains credulity that he may have observed some activity in the garage, visited the people who were engaged in the activity and handled the motor without ever having taken it into his possession. But even if the explanation given by the appellant is not accepted, the fact upon which the prosecution relies, namely, the presence of the fingerprints, remains equivocal.[24]
[23] [1992] SASC 3625 (Unreported, King CJ, Olsson, Mullighan JJ).
[24] R v Dimitropoulos [1992] SASC 3625 (Unreported, King CJ, Olsson, Mullighan JJ).
Verdict Unsafe or Unsatisfactory: First Ground
The primary contention by the defendant proceeds on the basis of an acceptance that the actus reus elements of the offence were established (including that, objectively, the vehicle driven by the defendant was likely to cause serious harm to Constable Smith), an acceptance by the jury of the observations of Constable Smith as to the movements of the defendant’s vehicle on Port Road and a rejection by the jury of the defendant’s evidence that he never saw Constable Smith at all. The defendant’s contention is that it was not open to the jury to draw the necessary inference as to the mens rea of the defendant even in those circumstances.
For the defendant to have committed the offence, it was necessary for the prosecution to prove beyond reasonable doubt that the defendant persisted in driving his vehicle towards Constable Smith, knowing that she was in front of him and would be hit by his vehicle if he continued in the outermost lane, for a sufficiently long time and sufficiently close to her such that he knew that this act of driving was likely to cause her serious harm (and intended to cause such harm or was recklessly indifferent thereto). In essence, the prosecution needed to establish that the defendant’s purpose was to continue to drive so close towards Constable Smith as to either hit her or bluff her into moving out of the way knowing that it was likely that he would in fact hit her. On appeal, the Director described this conduct by analogy as “playing chicken” (referring to the cliff top driving scene in the movie Rebel without a Cause).
As the appeal on this ground must be approached on the basis that the jury accepted the evidence of Constable Smith as to her observations of the movements of the defendant’s vehicle (and rejected any inconsistent evidence from the defendant), this Court is in the very same position to consider the same objective facts and circumstances as were to be considered by the jury and the jury had no appreciable advantage in hearing and seeing Constable Smith and the defendant giving evidence.
Drawing the necessary inference
The prosecution case in relation to mens rea was entirely circumstantial. The question on appeal is whether, on the evidence before them, it was open to the jury to draw the necessary inference as to the defendant’s state of mind beyond reasonable doubt, and in particular to exclude all hypotheses consistent with innocence as not reasonably open on the evidence.
In approaching this question, it should be borne in mind that it would have been extremely serious conduct for a person of the defendant’s age and good character (albeit with a blood alcohol level of .12 percent) to deliberately drive towards Constable Smith knowing that he was likely to hit her. It should also be borne in mind that a purpose of escape would most easily be accomplished by simply driving around Constable Smith rather than hitting her or attempting to bluff her into moving.
Most importantly, it should be borne in mind that it was a very short distance from the Adam Street/Port Road intersection to the position at which Constable Smith was standing (approximately 80 metres), it would take a short time for a vehicle to travel that distance (10 seconds at most), it was night time and the roadway ahead was obscured by vehicles.
Working backwards from the position at which Constable Smith was standing, the Director on appeal accepted that the relevant act of driving ended not at the point at which the defendant’s vehicle veered to the right (being five metres before Constable Smith on her evidence), but much earlier at the point at which the defendant made the decision to veer to the right. After he made that decision, there was necessarily a human reaction time between the point at which he made that decision and the point at which he applied pressure to the brakes of the vehicle. Further, there was necessarily a mechanical reaction time for the vehicle itself, being the time between the point at which the defendant applied pressure to the brakes and the point at which the vehicle (with its substantial momentum) changed direction and veered out of the outermost lane.
Accordingly, the end point was some tens of metres away from Constable Smith (depending upon the speed of the vehicle, the defendant’s reaction time and the vehicle’s reaction time). Given that the total distance from the Adam Street/Port Road intersection to the position at which Constable Smith was standing was only 80 metres, this necessarily put the end point of the relevant act of driving back a substantial proportion of that distance.
Working forwards from the other end, consideration must begin at the point at which the defendant rounded the corner from Adam Street into Port Road. On the prosecution case, and again assuming that the jury accepted the evidence of Constable Smith, after the defendant rounded the corner a substantial time necessarily elapsed while Constable Smith took time to see the vehicle and identify it as potentially the same vehicle she had seen in the Entertainment Centre car park, stepped into the outermost lane, stopped the vehicle or vehicles travelling ahead of the defendant in the outermost lane (as well as the vehicles in the other two lanes), and then waved them on again. During that time, the defendant’s vehicle was inexorably closing the distance between the intersection of Adam Street/Port Road and the point on Port Road in front of the Argentinean Bar and Grill.
By the time that Constable Smith stepped back into the outermost lane after waving on the preceding vehicle or vehicles, a significant number of seconds must have elapsed which must have brought the defendant’s vehicle much of the distance from the Adam Street intersection towards the front of the Argentinean Bar and Grill.
On the prosecution case, the circumstances included that it was night time, there was heavy traffic on the road due to a football match, and at least one vehicle must have between the defendant’s vehicle and Constable Smith at all points during which the defendant was driving in the outermost lane up to the point at which Constable Smith had waved the vehicles on and had stepped back into the outermost lane. There simply was no basis on which an inference could be drawn beyond reasonable doubt that the defendant must have seen Constable Smith before she stepped back into the outermost lane
By working forwards from the Adam Street/Port Road intersection and backwards from the Argentinean Bar and Grill in this way, there may well only have been a fleeting moment of time available for the defendant to see Constable Smith and make a conscious decision whether to drive towards her (“playing chicken” or hitting her) or take evasive action.
It is of course possible that the defendant did deliberately drive towards Constable Smith knowing that he was likely to hit her, but in my view this possibility cannot rise above the level of conjecture. The objective facts and circumstances (accepting Constable Smith’s evidence of her observations) do not give rise to an inference that the defendant necessarily possessed the requisite state of mind. For the reasons explained by the High Court in Knight, and this Court in Dimitropoulos, assuming that the jury disbelieved the defendant’s story, this could not negate the hypothesis, consistent with innocence, that the defendant did not see Constable Smith in sufficient time and at a sufficient distance away from her to have acquired the requisite knowledge and intention or recklessness in relation to the likelihood of his vehicle colliding with her.
It follows that the verdict was unsafe and unsatisfactory and the conviction should be quashed.
In these circumstances, it is not necessary to consider whether or not the trial Judge erred in not acceding to the no case to answer submission.[25]
[25] R v Dimitropoulos [1992] SASC 3625 (Unreported, King CJ, Olsson, Mullighan JJ) at 4.
Verdict Unsafe and Unsatisfactory: Second Ground
In case my conclusion be wrong as to the first ground, I consider the second substantive ground of appeal. As identified above, it was a major factual issue at the trial as to whether or not it was the defendant who had committed the offences in the HIA car park shortly prior to the alleged offence on Port Road. The prosecutor told the jury:
It is the prosecution case that it was the accused, the accused who was in the car park who fled from there, who was then seen running across Port Road and who then eventually ran to his vehicle that was parked in the car park of the Adelaide Entertainment Centre.
In his summing up to the jury, the trial Judge directed the jury as follows:
The prosecution alleges that the man who was trying to break out of the HIA car park, or at least to open the gate of that car park, was the accused, and that, because he had been behaving unlawfully in the HIA car park, he had a motive to try to escape from the police. That is, it is the prosecution case. The prosecution alleges that because he had been caught up to no good in the HIA car park, he had a motive to flee from the police when he knew, on their case, that he was being chased by police officers…
It is an essential plank of the prosecution case that the accused was in fact the man in the HIA car park. It is an essential plank on the prosecution case because his being in the car park would give him, on the prosecution case, a reason or a motive to evade the police, to run away, to drive off quickly. If you do not accept beyond reasonable doubt the accuracy of Constable Smith’s evidence of identification of the accused as the man in the car park, then ladies and gentlemen, there is no evidence that the accused had any reason to evade the police, at least as he was running across Port Road as the police say because at that stage you might think he had no cause even to be worried about the fact he had been drinking and the police finding out about that.
Given the trial Judge’s direction to the jury that it was an essential plank on the prosecution case that it was the defendant who was present in the HIA car park and they were required to find beyond reasonable doubt to that effect in order to convict him, the question arises whether it was open to the jury to be satisfied beyond reasonable doubt of this fact. I turn to the evidence relevant to that issue.
Mr Reilly lived opposite the rear gate to the HIA car park. He was called as a witness by the prosecution. He gave evidence that he saw a man inside the rear gate striking the padlock and chain on the gate with a mallet. A second man joined him and they both walked to the front gate which they also struck with the mallet. Both men were wearing t-shirts and jeans. He saw three vehicles parked in the car park (a dark Toyota HiLux, a white Ford station wagon and a small compact vehicle). He phoned the police at 9.47pm. Two constables arrived, Constables Smith and Dawson. He informed them of what he had seen. The men jumped over the fence out of the car park and the constables pursued them.
Constable Smith gave evidence that, when she attended outside the HIA car park, she saw a man crouching in the shadows behind shrubbery. He was about 35 metres away. She was in company with Constable Dawson and Mr Reilly at the time. She saw the man jump the fence and pursued him on foot. She broadcast a “look out” request while she was running. The audio recording of the call was tendered. The radio transmission was logged at 9.56 pm. It recorded her describing the man as wearing “a white t-shirt”. She later made a broadcast referring to the traffic being heavy due to a football match.
In evidence, in stark contrast to her contemporaneous radio transmission and Mr Reilly’s evidence, Constable Smith said that the man was wearing a long‑sleeved white dress shirt and dark pants and she denied that he was wearing a t‑shirt. Constable Smith also said in evidence that she saw the man in the car park well enough to recognise him later. By contrast, both Mr Reilly and Constable Dawson said it was too dark and far away and the man was too obscured to be able to recognise him.
The prosecution led no evidence that there was any connection whatsoever between the defendant and any of the three vehicles in the car park. The prosecution did call the owner of the Toyota HiLux, who said that he found his vehicle had been locked in that night, he had a mallet in the tray and he was with a friend, but denied he attempted to break out of the car park.
In March 2010, some 12 months after the night, Constable Smith viewed photographs of several men, including one of the defendant. She identified the photograph of the defendant as the man she saw in the HIA car park. Contrary to normal practice, no video or other recording was made of the viewing.
The defendant gave evidence that he attended at the Governor Hindmarsh Hotel on the night to play his guitar and sing, which he was then doing regularly each Wednesday. He was wearing a long-sleeved white dress shirt and dark trousers. He purchased a concert ticket at the Hotel, which was independently proved to have occurred at 9.37pm.
In my view, it was not open to the jury to be satisfied beyond reasonable doubt as directed by the trial Judge (or indeed at any level at all) that it was the defendant who was present in the HIA car park. This is for reasons which include:
1.the evidence of Mr Reilly and the radio transmission by Constable Smith that the person in the car park was wearing a white t‑shirt, in circumstances in which it was unequivocal that the defendant was wearing a white dress shirt;
2.the inherent difficulties of Constable Smith in the circumstances identifying the person hiding behind the bushes, which difficulties precluded both Mr Reilly and Constable Dawson from identifying that person;
3.its being virtually impossible that the defendant could have purchased a concert ticket inside the Governor Hindmarsh Hotel at 9.37pm and then had time to exit the hotel, walk to the HIA car park, climb into the HIA car park, obtain a mallet, attempt to break the rear gate of the car park with the mallet, walk to the front gate, attempt to break that gate with the mallet and then for Mr Reilly to have telephoned the police only 10 minutes later at 9.47pm;
4.on the prosecution case, there being no reason whatsoever for the defendant to have entered or attempted to break out of the HIA car park on the night when he had parked his car across the road in the Entertainment Centre car park and had been accustomed to doing so.
A reasonable jury, acting in accordance with the trial Judge’s explicit direction that they were required to find beyond reasonable doubt that it was the defendant who was present in the HIA car park in order to convict, must have acquitted the defendant of the offence. The verdict of guilty was therefore unsafe and unsatisfactory, independently of the first substantive ground of appeal.
It is unnecessary to consider whether the prosecution might have run a case without the presence by the defendant in the HIA car park as an essential plank. This is because the trial Judge directed the jury on the basis that it was an essential plank, the prosecutor did not seek any contrary direction and in order to convict the defendant the jury must therefore have concluded that he had committed the offences in the HIA car park.
Conclusion
I would allow the appeal. I would set aside the verdict of guilty and acquit the defendant.

[2011] SASCFC 145

6 December 2011

Key Legal Topics

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Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Intention

Sentencing