R v Timperon No. Sccrm-02-358

[2003] SASC 10

R  v  TIMPERON

[2003] SASC 10

Court of Criminal Appeal:  Perry, Williams and Bleby JJ

1. PERRY J:             I agree with the reasons given by Bleby J.

2. WILLIAMS J:      I agree.

3. BLEBY J: This is an appeal against conviction. The appellant was convicted in the District Court at Port Augusta of one count of causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935.

4. The appellant appeals on the ground that the trial Judge erred in his direction to the jury in respect of the definition of dangerous driving.

5. The particulars of the offence were that on 24 November 2000, at Booleroo Centre, the appellant drove a motor vehicle in a manner which was dangerous to the public and thereby caused the death of Russell Scott Fiebig.  It was an agreed fact that on 24 November, at approximately 3.25pm a collision occurred between a prime mover and trailer and a Ford sedan on the Willowie to Booleroo Centre Road, and that as a result of that collision Mr Fiebig died.  The prime mover was being driven by the appellant.

6. The vehicles were travelling in opposite directions along an unsealed, unmarked dirt road.  They collided head on.  It was the Crown case that the appellant’s prime mover was substantially on the incorrect side of the road, on a bend near the crest of a hill, and in circumstances of poor visibility due to a cloud of dust that had been created by another truck which was travelling in front of the prime mover.  There was no mechanical defect in either vehicle.

7. The appellant testified that he was travelling at about 25 to 30 kilometres per hour, and that as his vehicle began to ascend a hill, it moved closer to the truck travelling ahead, so that the dust created by the truck obstructed his view. He found it difficult to see more than 10 metres ahead.  The appellant said that he was keeping his bearings by reference to the scrub on the left hand side of the road.  He said that he did not pull over to the side of the road because he was waiting for the truck ahead to begin descending the other side of the hill so that there would be more space between them and the dust would diminish.  He admitted driving on the incorrect side of the road.  Defence counsel submitted that in any event there was substantial distance between the appellant’s vehicle and the vehicle ahead, and that the appellant’s vehicle was travelling on the incorrect side of the road due to a momentary lapse in concentration.  It was submitted that it was an error of judgement that the appellant did not pull over to the side of the road which, at most, constituted driving without due care or attention.

8. In his summing up to the jury, before discussing the facts, the prosecution case, the defence case, the evidence and the arguments, the Judge addressed the elements of the offence, and in particular, what constituted dangerous driving.

9. What his Honour said about dangerous driving was unexceptional.  In the course of discussing what constituted dangerous driving, the trial Judge contrasted that with driving without due care.  He later instructed the jury that the offence of driving without due care was an alternative offence of which they could find the appellant guilty if they found him not guilty of the primary charge.

10. The sole ground of appeal is that the trial Judge erred in his direction to the jury regarding the definition of dangerous driving.

11. The only argument put to this Court was not that the trial Judge gave a faulty direction to the jury as to what constituted dangerous driving, but that his Honour gave a misdirection to the jury when they asked a question as to what constituted driving without due care.

12. It is not clear why that question was asked, and I am not satisfied that the answer that his Honour gave to the question constituted a misdirection.  But even if it did, I do not see how it could have affected the jury’s ultimate verdict.

13. The verdict was guilty of causing death by dangerous driving.  There is now no complaint about the directions concerning that offence.  The trial Judge carefully instructed the jury that they were only to consider the alternative offence of driving without due care if they found the appellant not guilty of the principal charge.  I am conscious that it was suggested by Bray CJ in R v Mayne (1975) 11 SASR 583 at 585 and by Napier CJ in R v Duncan noted at (1975) 11 SASR 592 that it may be desirable for a jury to work up the scale of seriousness in considering alternative verdicts for the charge. However, I consider that the trial Judge did not err in directing this jury to consider the principal charge first, and only if they found the appellant not guilty of that, to consider the alternative.

14. There is no complaint, nor could there be, about the direction as to what constituted dangerous driving and the other elements of that offence.  The jury decided, unanimously, that the appellant was guilty of that charge.  Upon the directions of the trial Judge, properly given, the alternative charge of driving without due care did not arise, and any direction given to the jury as to what constituted driving without due care became irrelevant. 

15. In any event, there is no reason to feel concerned about the verdict of the jury.  It was a case of very bad driving in extremely dangerous conditions.  I would therefore dismiss the appeal.