R v Tennant - [2019] SASC 150

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v TENNANT
Criminal Trial by Judge Alone
[2019] SASC 150
Judgment of The Honourable Justice Kelly
16 August 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
Criminal trial by judge alone.
The accused pleaded not guilty to the offence of murder but guilty to manslaughter. The prosecution did not accept that plea. The accused elected to be tried by a judge sitting alone. The accused, by her plea to manslaughter, admitted that she was the driver of the vehicle that hit the deceased and caused his death. She did not deny that her actions were conscious and voluntary. The issue at trial was whether, at the time she drove her car into the deceased, the accused possessed the necessary specific intent for the crime of murder.
Whether the accused intended to kill or cause grievous bodily harm to the deceased – whether the accused is guilty of manslaughter by unlawful and dangerous act.
Held:
1. The accused is not guilty of murder.
2. The accused is guilty of manslaughter by unlawful and dangerous act.
Criminal Law Consolidation Act 1935 (SA) s 11, referred to.

R v TENNANT
[2019] SASC 150
Criminal: Trial by Judge Alone
KELLY J.
Introduction

The accused, Adriana Betty Tennant, is charged with the crime of murder.[1] The particulars of the charge are that on 24 November 2017, at Quorn, she murdered Nathan Freer (the deceased).
[1] Criminal Law Consolidation Act 1935 (SA) s 11.
Upon her arraignment on the first day of the trial, the accused pleaded not guilty to murder but guilty to manslaughter. The prosecution did not accept the plea to manslaughter in answer to the charge on the Information and the trial on the charge of murder then commenced before me as a Judge sitting alone on 5 August 2019.
Facts
At about 8.00 pm on Friday, 24 November 2017 the accused and her husband, Mr Derek Tennant, were driving their white Mitsubishi Triton[2] along Park Terrace in Quorn when they passed a vehicle going in the opposite direction. That vehicle, a red coloured Holden sedan, was driven by Ms Angie Dowling, the partner of the deceased. With her in that vehicle, seated in the front passenger seat, was the deceased. Their two teenage sons were in the rear passenger seats of the vehicle. As the vehicles passed each other on Park Terrace, Mr Tennant, who was in the front passenger seat of the Mitsubishi Triton, stuck his fingers out at the vehicle driven by Ms Dowling. At the request of the deceased, Ms Dowling then performed a U‑turn and pursued the Mitsubishi Triton, which was being driven by the accused.
[2] Exhibit P9.
At that time, the accused’s vehicle had a video camera, known as a ‘dashcam’, installed on the dashboard which continuously recorded the view through the vehicle’s front windscreen and out onto the road. The dashcam recorded the events as they thereafter unfolded on that day.
After Ms Dowling began to pursue the accused’s vehicle, the accused stopped in the middle of the road and braked. Ms Dowling stopped her vehicle behind the accused’s vehicle and the deceased exited the red Holden sedan. The deceased threw a beer bottle at the accused’s vehicle. The sound of a thud as the bottle hit the rear of the accused’s vehicle can be heard on the dashcam recording almost at the same moment that the accused began to drive off down Park Terrace again. Mr Tennant then told the accused to pull over, and the accused pulled off to the side of the road and onto the dirt verge on Park Terrace. Mr Tennant got out of the vehicle. The sound of what is presumed to be his front passenger door closing can also be heard on the dashcam recording. The accused, who remained in the vehicle, put on the vehicle’s right indicator and commenced a 270 degree turn, driving the Mitsubishi Triton directly into the deceased who was brandishing a beer bottle and approaching her vehicle. The deceased was initially thrown up onto the bonnet of the accused’s vehicle, and then fell beneath the vehicle which ran over the deceased and crashed through a chain mesh fence before coming to a stop at the bottom of an embankment amongst foliage.
The deceased died very shortly thereafter from multiple injuries.
At trial, the accused did not deny that she was the driver of the vehicle that hit the deceased and caused his death, nor did she deny that her actions were conscious and voluntary.
The only real issue in dispute, and therefore the only real issue for me to determine, is whether it is established beyond reasonable doubt that in the moment that the vehicle driven by the accused struck the deceased, the accused intended to kill or cause grievous bodily harm to the deceased.
My consideration of this single issue can be broken down into the following components. First, I must determine whether the accused intended to drive her vehicle into the deceased, in other words, whether she intended to hit him with her vehicle. If she did intend to, the next issue that arises is whether, at that time, she intended to kill or cause grievous bodily harm to the deceased. Even if the accused did not intend to cause death or grievous bodily harm, a further issue arises for determination on the charge of murder, and that is whether, at the time of driving the vehicle into the deceased, the accused foresaw that her actions would probably cause death or grievous bodily harm to the deceased. In other words, an issue arises as to whether the accused is guilty of reckless murder.
Law
I bear in mind that the accused comes into this Court with the presumption of innocence in her favour. She is to be regarded as innocent on the charge of murder, unless and until the prosecution has proved her guilt on that charge beyond reasonable doubt. The burden of proving that charge lies wholly on the prosecution.
The matters which the prosecution must prove beyond reasonable doubt on the charge of murder are:
1That the act of the accused caused the death of the deceased;
2That the act of the accused, which caused the death of the deceased, was conscious and voluntary, and not the result of an accident;
3That the act of the accused which caused the death of the deceased, was carried out with the intention of either killing the deceased or, at the very least, of causing grievous bodily harm to the deceased. By that term, I mean really serious bodily harm. That intention must be present at the time that the act that caused the death of the deceased was performed; and
4That the killing was done without any lawful justification or excuse.
There has been no suggestion in this case that there was any lawful reason for the killing of the deceased. The accused has conceded that it was her driving that caused the death of the deceased, and that her driving was conscious and deliberate. I proceed, therefore, on the basis that the real issue in this trial is whether, at the time she drove the car at the deceased, she possessed the necessary specific intention for the crime of murder.
I will now proceed to discuss the evidence. I will then consider the inferences I can safely draw from the evidence which I am prepared to accept. I emphasise at the outset that when I use the terms “accept”, “satisfied” or “proved” I mean accept, satisfied or proved beyond reasonable doubt.
Evidence
An unusual aspect of this trial is that the entire incident giving rise to the charge was recorded on dashcam footage from the Mitsubishi Triton driven by the accused.[3] From that footage, it is apparent that the entire incident occurred in less than one minute, and that from the moment the accused commenced the 270 degree turn, to the moment of impact with the deceased, a period of only approximately eight seconds elapsed.
[3] Exhibit P5.
I heard from a number of civilian and police witnesses. In the main, the evidence given by these witnesses was not challenged.
Brevet Sergeant Rebecca Guest
Brevet Sergeant Rebecca Guest, from the Major Crash Investigation Section of the South Australian Police Force, examined the scene of the incident approximately four hours after the death of the deceased. Brevet Sergeant Guest prepared a diagrammatic plan of the area to scale,[4] took a number of photographs[5] and measurements, and gave detailed evidence about her findings. Brevet Sergeant Guest’s investigation and examination of the scene was supplemented by evidence from Brevet Sergeant Allison Huppatz, a crime scene investigator, who took a number of photographs, first at the scene and later at the police impound yard.[6] Brevet Sergeant Guest said she used the dashcam footage to estimate the approximate point of impact between the Mitsubishi Triton and the deceased and marked that point on the diagrammatic plan.[7]
[4]    Exhibit P2.
[5]    Exhibit P1.
[6]    Exhibit P4.
[7]    Exhibit P2A.
Brevet Sergeant Guest explained the significance, in particular, of the orientation and position of the tyre marks left by the Mitsubishi Triton prior to, and after, the approximate point of impact with the deceased. Brevet Sergeant Guest expressed the opinion that the rolling tyre marks produced by the Mitsubishi Triton did not suggest that the vehicle was out of control prior to the point of impact. She considered that the trajectory of the tyre marks left on the surface of the road was consistent with the driver’s steering input in the direction in which it was travelling. She said there was no indication of any braking at any stage. Her evidence was that, in order for the vehicle to have been placed in a straight-line trajectory toward the deceased, immediately prior to the impact with the deceased, there must have been steering input. Had the vehicle continued with the same steering input as at the commencement of the 270 degree turn, it would have followed a different trajectory to the actual tyre markings observed at the scene. She said this was indicated by the fact that just prior to the estimated point of impact, the tyre marks were slightly wider than the rest of the tyre marks, suggestive of the vehicle straightening up with a deliberate steering input.
Brevet Sergeant Guest confirmed some important measurements. The distance from the point of commencement of the 270 degree turn executed by the accused from a stationary position on the roadway, to the approximate point of impact with the deceased, was 39.5 metres. The distance from the approximate point of impact to the chain mesh fence was a distance of four metres, and from the approximate point of impact to the position where the vehicle came to a halt embedded in the tree was 20.4 metres.
Brevet Sergeant Nicholas Chance
Brevet Sergeant Nicholas Chance, from the Port Augusta Criminal Investigation Branch, gave evidence that blood and alcohol tests administered to the accused shortly after the incident did not reveal any alcohol or other drugs in her system. Brevet Sergeant Chance also said that he asked the accused, when he first took over custody, who was driving the car and that she agreed that it was her.
Senior Constable Timothy Schoemaker
Senior Constable Timothy Schoemaker was stationed at Quorn at the relevant time, and had been for approximately 12 months prior to November 2017.
In that capacity, he explained his knowledge of some of the family members of both the accused and the deceased. He knew Ms Dowling and her partner, the deceased, the deceased’s mother, Debra Freer, and he knew both the accused and her husband, Derek Tennant, as well as their daughter, Marika Tennant, and her husband, Kenneth Cookson.
The effect of Senior Constable Schoemaker’s evidence, which was not challenged, was that both families complained about each other from time to time to police. Not all of the family members were involved in all of the complaints. The complaints which were made were usually in the nature of nuisance behaviour between various members of the Freer family on the one hand and the Tennant family on the other. Senior Constable Schoemaker said that, throughout the time of his involvement with the ongoing dispute between the families, there had never been any report of a violent incident or physical assault by either family or members of either family. His evidence was that the complaints were of behaviour that was all in the nature of harassment and verbal confrontations.
While the evidence of the prior nuisance behaviour between the two families was not led by the prosecution as discreditable conduct on the part of the accused, I nevertheless pause here to note that I have not taken that evidence into consideration or used it for any purpose beyond the contextual purpose for which it was introduced. I draw no adverse findings against the accused on the basis of that evidence. I have in fact taken that evidence into account as one of the considerations which have caused me to entertain a reasonable doubt as to the third element of the charge of murder.
Luke Finlay
Luke Finlay is a 16 year old man who resides in Quorn. At the time of the incident on 24 November 2017, he was working in the garage of his home which was adjacent to the area on Park Terrace where the incident occurred. Mr Finlay said in evidence that, prior to the incident, he knew who the deceased was but had never met him. He also knew the deceased’s partner, Ms Dowling, and their two teenage sons. He did not know, and had never met, the accused or her partner, Derek Tennant.
He said that at approximately 8.00 pm on 24 November 2017, he saw a white Mitsubishi Triton pull up out the front of his garage. He could see a female Aboriginal driver but could not see a passenger. He said the Mitsubishi Triton stopped there for about two seconds and that he heard glass break. The vehicle then pulled off again, continuing in the same direction it had been travelling, and he then saw the deceased chasing the Mitsubishi Triton yelling, “you mob of cunts”. At the time, he observed that the deceased was holding a Corona beer bottle above his head.
By the time he ran through the house and out to the front again, he saw that the Mitsubishi Triton was parked in the creek across the road, the deceased was lying behind the Mitsubishi Triton on his back on the ground, and Ms Dowling was trying to give the deceased CPR. One of Ms Dowling’s sons was with her. He said that the accused was standing outside of the driver’s side door of the Mitsubishi Trition. He said he heard the accused say, “he stood in front of me”. Mr Finlay said the accused did not seem too upset.
I found Mr Finlay to be a witness of truth and wholly accept his evidence.
Angie Dowling and Blake Freer
Ms Angie Dowling, the partner of the deceased, and Blake Freer, the 18 year old son of the deceased, gave evidence. Ms Dowling gave evidence by closed circuit television and Mr Freer gave evidence in court but with a screen placed between the dock and the witness box. Both were accompanied by a support person and the court was closed for the duration of their evidence.
I remind myself at this point that no inference adverse to the accused can be made as a consequence of the witnesses giving their evidence in that manner. I have assessed their evidence on the same footing as every other witness in the trial.
Ms Dowling and Mr Freer were both briefly cross-examined on a discrete issue regarding Ms Dowling’s conduct towards the accused following the incident. However, the vast majority of their evidence was unchallenged. Both gave evidence that the accused, after exiting her vehicle, had started yelling at Ms Dowling, saying words to the effect of ‘look what you’ve made me do’ and ‘this is what you’ve done’. Mr Freer testified that the accused seemed angry and was waving her fist at Ms Dowling and swearing.
Both Ms Dowling and Mr Freer gave evidence consistent with that of Senior Constable Schoemaker regarding the type of disputes that had occurred between the Freer and Tennant families prior to the incident.
There was, as it turned out, very little in dispute as to the events which unfolded in those few short seconds on Park Terrace, Quorn on 24 November 2017. The evidence of both Ms Dowling and Mr Freer as to what occurred in those eight seconds before impact, was entirely consistent with what I saw and heard on the dashcam footage[8] and on the audio recording of the 000 call which Ms Dowling made in the minutes after the incident.[9] I accept the effect of the evidence of both Ms Dowling and Mr Freer as to what occurred in the second leading up to the moment of impact and what followed thereafter.
Agreed Facts[10]
[8] Exhibit P5.
[9] Exhibit P8.
[10] Exhibits P11 and P12.
The autopsy report in relation to the deceased’s injuries revealed an obviously broken right leg just below the knee joint. That injury appears to be consistent with impact with the bull bar at the moment when the deceased was struck by the Mitsubishi Triton.
In her report, the forensic pathologist expressed the view that the injuries suffered by the deceased were not survivable even with immediate medical assistance. There were multiple injuries which resulted in death. As well as fractures to the skull, pelvis and lower legs, there were severe chest and abdominal injuries. The overall pattern of injuries suggests significant impact, compression and tangential forces. The findings were consistent with the deceased suffering crush injuries and sheering and twisting related injuries due to being struck, dragged and then passing under a vehicle.
That opinion is also supported by what can be seen on the dashcam video footage. It seems that the deceased was dragged underneath the vehicle for approximately 20 metres.
The accused
At the conclusion of the prosecution case, the accused elected not to give evidence. She was not obliged to do so and I will draw no inference adverse to the accused because she has chosen to exercise a right which the law gives to her.
Findings on the charge of Murder
It is up to the prosecution to prove the charge of murder beyond reasonable doubt. I cannot find the accused guilty of murder unless I conclude that there is no reasonable explanation for the evidence which I am prepared to accept, other than that the accused is guilty of the crime of murder. To put that another way, if there is any reasonable explanation other than that the accused committed the murder of the deceased, then she must be found not guilty of murder.
I have carefully considered the evidence before me. I have viewed the dashcam footage of the actual moment of impact many times.
The only evidence which I have as to the accused’s state of mind in those critical few seconds prior to, and at impact with the deceased, comes from that dashcam footage and the observations of others at the scene.
As I have previously identified, the first issue to determine is whether the accused intended to drive the vehicle at the deceased. If she did so, the next issue is whether, at the time when she drove the vehicle at the deceased, she possessed the requisite intention for the crime of murder, namely, an intention to kill or, at the very least, cause grievous bodily harm.
I bear in mind that these events unfolded very quickly. Although I have had the opportunity to watch the dashcam footage of those crucial eight seconds frame by frame, I am mindful of the fact that the entire incident occurred in just a few seconds.

Nothing can be heard on the dashcam recording which gives any indication of the accused’s state of mind at the time she commenced the 270 degree turn, or thereafter. After Mr Tennant got out of the vehicle, there was complete silence in the cabin of the Mitsubishi Triton.
At first glance, it might seem a simple step to conclude that anyone who drives a vehicle weighing nearly two tonnes straight into another person intends, at the very least, to cause that person grievous bodily harm.
However, having viewed the dashcam footage many times, there are a number of puzzling aspects I have observed about that video.
The first aspect, which I have previously adverted to, is that the incident unfolded very rapidly. The second aspect is that, even though the accused appears to have executed a deliberate 270 degree turn and, in effect, lined up the deceased and driven straight at him, the fact that the vehicle then crashed through a chain mesh fence down an embankment, and only came to rest when the vehicle was embedded in a tree, raises a question mark as to the accused’s control of the vehicle and actual intention at the moment of impact. In my view, in considering all of the evidence before me, the movement of the vehicle from the approximate point of impact to the tree is consistent with a loss of control, at least at that stage. I express that view because I find it unlikely that the accused would have deliberately driven her vehicle into a chain mesh fence, down an embankment and into a tree.
I cannot be sure what the accused’s actual state of mind was at the moment of impact. I am satisfied that she steered the vehicle directly into the path of the deceased, but I am not sure that she intended to do more than assault the deceased at that time. There had been no history of anything other than what can be described as nuisance behaviour between the accused and the deceased and his family prior to the events of 24 November 2017. There seems little doubt that the behaviour of the deceased on that particular afternoon, in throwing the beer bottle at the Mitsubishi Triton, agitated both Mr Tennant and the accused. Nevertheless, to conclude, in approximately 30 seconds between the throwing of the bottle and Mitsubishi Triton hitting the deceased, that the accused formed a murderous intent would be difficult.
Indeed, the events unfolded so rapidly that I am not convinced that the accused formed any specific intention at all other than to knock the deceased down. Furthermore, given the trajectory of the vehicle from the approximate point of impact to the tree, there remains some doubt in my mind as to whether, at some point, the accused lost control of the vehicle.
These considerations have left me with a reasonable doubt as to the third element of the crime of murder. I am not satisfied that the accused intended to kill or cause grievous bodily harm to the deceased. I am also not satisfied, on the evidence before me, that the accused foresaw that driving her vehicle at the deceased in the manner that she did would probably cause his death or grievous bodily harm.
Therefore, I must acquit the accused of the charge of murder.
Manslaughter by an unlawful and dangerous act
I turn now to consider the offence of manslaughter, to which the accused pleaded guilty at the commencement of the trial.
Although by her plea the accused has admitted each of the essential elements of the crime of manslaughter, I shall deal with each one separately to ensure that I am satisfied, beyond reasonable doubt, that the prosecution has proved the elements of the offence.
Although manslaughter can be committed in several different ways, I am concerned in this case with manslaughter by an unlawful and dangerous act. This crime has four elements:
1That the accused caused the victim’s death;
2The relevant act was voluntary;
3The relevant act was unlawful; and
4The relevant act was dangerous.
I am satisfied, as with the crime of murder, that the first two elements of the offence are not in dispute. The accused has admitted causing the deceased’s death. She has admitted that she was driving the vehicle at the time that it struck the deceased.
Insofar as it is necessary for the prosecution to prove under the second element that the driving was both voluntary and deliberate, I have found on the basis of the evidence that the accused deliberately and intentionally drove the vehicle into the path of the victim who was walking towards her.
I am also satisfied that, in the circumstances, the driving of the accused in that manner was unlawful. It was unlawful because, in effect, the accused was using her vehicle as a weapon to assault the victim. I find it proved beyond reasonable doubt that she intended to hit him and that is exactly what she did.
Finally, an act will be considered to be dangerous for the purpose of the fourth element if a reasonable person, in the accused’s position, would have realised that her actions would have exposed the deceased to an appreciable risk of serious injury. On all of the evidence before me, I am satisfied that the driving in these circumstances was dangerous. There is no doubt in my mind that a reasonable person, in the position of the accused, would have realised that she was exposing the deceased to an appreciable risk of serious injury by driving a vehicle, which weighed almost two tonnes, directly into his path with the intention of hitting him.
I have already discussed, in the context of considering the crime of murder, whether the accused possessed an intention which might have satisfied the requisite state to be guilty of the crime of murder, either by intentional causing of grievous bodily harm, or by carrying out an act knowing that the probable consequence would be to cause grievous bodily harm or death.
For the reasons which I explained earlier, I was not satisfied beyond reasonable doubt of the third element of the crime of murder.
However, I am in no doubt that any reasonable person, in the same position as the accused, would have realised that by steering the vehicle directly at, and into, the deceased was exposing him to an appreciable risk of serious injury.
Therefore, I am satisfied beyond reasonable doubt as to each of the elements of manslaughter by an unlawful and dangerous act.
The accused entered the plea of guilty at the commencement of the trial. She was right to do so.
I find the accused guilty of manslaughter by an unlawful and dangerous act.