R v Uduma - [2013] SASCFC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v UDUMA
[2013] SASCFC 2
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)
7 February 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - OTHER MATTERS - QUALIFICATION OF EXPERT WITNESS
Appeal against conviction – the defendant was charged with causing serious bodily harm by dangerous driving, contrary to section 19A(3) of the Criminal Law Consolidation Act 1935 (SA) – following a trial by a Judge alone, the defendant was convicted – where a collision occurred on the incorrect side of the road for the defendant’s direction of travel – where the victim suffered serious harm – where a primary issue at trial was whether the defendant’s driving was dangerous – on appeal, the defendant advanced a number of complaints – whether there was a reasonable hypothesis consistent with innocence – whether the verdict was unsafe and unsatisfactory.
Held per Gray J (Vanstone and White JJ concurring): Appeal dismissed – the evidence given by police officers in respect of average reaction times was within their expertise, admissible and available to be used by the Judge – the Judge did not misuse the evidence about average reaction times – the Judge did not misuse the evidence given by a police officer on the topic of headlights – it was open to the Judge to reject the defendant’s submission that the collision was caused by the glow of headlights on the tree canopy – all of the calculations made by the Judge were open on the evidence – the Judge was entitled to consider possible scenarios regarding the circumstances of the collision, even those not advanced by the defendant – the hypothesis that the collision occurred because the defendant was blinded or distracted by the headlights of the victim’s vehicle and swerved into the path of the victim’s vehicle was not a reasonable hypothesis – there was no miscarriage of justice – the verdict returned by the Judge was open to him and was the correct verdict.
Held per White J: It was appropriate for the police officers with expertise in accident reconstruction to rely upon the authoritative data published by others concerning average reaction times of drivers.
Criminal Law Consolidation Act 1935 (SA) s 19A(3); Australian Road Rules (SA) r 132, referred…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Uduma

Details

AGLC: R v Uduma [2013] SASCFC 2
Case: [2013] SASCFC 2
Decision Date: 7 February 2013

CaseChat Overview and Summary

The appeal concerned a conviction for causing serious bodily harm by dangerous driving, contrary to section 19A(3) of the *Criminal Law Consolidation Act 1935* (SA). The appellant, R v Uduma, was convicted by a Judge alone following a collision where his vehicle was on the incorrect side of the road, resulting in serious harm to the victim. The central dispute at trial was whether the appellant's driving constituted dangerous driving.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the verdict was unsafe and unsatisfactory, and whether there was a reasonable hypothesis consistent with innocence. Specifically, the court considered the admissibility and use of expert evidence from police officers regarding average reaction times and the topic of headlights, and whether the trial Judge had misused this evidence or made calculations not supported by the evidence. The court also considered whether the trial Judge was entitled to consider scenarios not advanced by the defendant and whether a particular hypothesis regarding the collision was reasonable.

The Full Court, comprising Gray, Vanstone, and White JJ, dismissed the appeal. The court held that the evidence given by police officers concerning average reaction times was within their expertise, admissible, and properly used by the trial Judge. The Judge's calculations and consideration of possible scenarios, including those not raised by the defence, were found to be open on the evidence. The hypothesis that the collision occurred due to the appellant being blinded or distracted by headlights and swerving into the victim's path was deemed not to be a reasonable hypothesis, particularly given the implausibility of the sequence of events and the required reaction time. The court concluded that there was no miscarriage of justice and that the verdict of dangerous driving causing serious harm was not only open to the trial Judge but was overwhelmingly supported by the evidence and was the correct verdict.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J VANSTONE J (dissent) WHITE J (dissent)

Finally, it was submitted that it would be open to this Court to substitute an alternative verdict of guilty of the offence of aggravated driving without due care. To support this contention, counsel for the defendant drew attention to what he said was a decision or error made by the defendant in the “agony of the moment”. This submission faced the difficulty earlier identified that it was the defendant’s evidence that he did not swerve and that when confronted by the headlight glare, he steered a straight course. The circumstance of the defendant’s vehicle being entirely on the wrong side of the road as it traversed the crest and on a course for a head-on collision with an approaching motorist in defiance of clear road markings and without any attempt to reduce speed fully justified the verdict of guilty of dangerous driving. The admitted injuries confirm that that dangerous driving caused serious harm. The verdict returned by the Judge was not only open to him, it was a verdict overwhelmingly supported by the evidence and, in my view, it was the correct verdict. Conclusion I would dismiss the appeal. I would dismiss the appeal. I agree with the reasons of Gray J. I agree that the appeal should be dismissed for the reasons given by Gray J. I add the following in relation to the appellant’s complaint regarding the trial Judge’s admission and use of the police officers’ evidence as to reaction times. It is important first to note the context in which the issue arose. The defence case at trial was that the prosecution had not excluded as being reasonably possible that the appellant had made a last moment’s swerve into the path of Mrs Coscia’s vehicle because he had been blinded by her headlights or because of the agony of the moment. This hypothesis seems implausible and in any event is not supported by the evidence of either driver, each of whom described travelling straight ahead in the moments immediately preceding impact. Furthermore, the impact occurred some 20‑50 metres south of the crest of the hill over which the appellant had travelled. It is not possible to be precise as to when Mrs Coscia’s headlights would have become directly visible to the appellant but, on any view, it must have been a very short distance before the appellant reached the point of impact, probably in the order of 50 metres. The lower end of the appellant’s estimate of his speed, 90 kph, is equivalent to 25 metres per second. This means that it would have taken the appellant about two seconds to travel the distance of approximately 50 metres between first seeing Mrs Coscia’s headlights to the point of collision. In this period, on the alternative hypothesis, the appellant had to have been blinded by the headlights, reacted, swerved onto his incorrect side of the road, and then straightened his vehicle so that both vehicles were virtually head on, but slightly offset to the right, at the point of impact. Such a scenario is highly implausible especially given the required reaction time.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J,

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