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Schwark v Police

Schwark v Police

Case [2011] SASC 212 9 December 2011

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SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SCHWARK v POLICE
[2011] SASC 212
Judgment of The Honourable Justice Gray
9 December 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - GENERALLY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - VOLUNTARINESS - GENERALLY
Defendant charged with causing harm by dangerous driving contrary to section 19A(3) of the Criminal Law Consolidation Act 1935 (SA) - where the objective elements of the offence were admitted - where the Magistrate found that the defendant was not mentally competent to commit the offence - defendant appealed against the Magistrate's decision to disqualify him from holding or obtaining a driver's licence for 12 months - appeal by the defendant abandoned before the appeal hearing - the police cross-appealed, challenging the finding that the defendant was not guilty by mental incompetence.
Held: Cross-appeal by police allowed - the defendant's driving was a willed act - viewed objectively, the defendant's driving was dangerous and caused serious injury to his passenger - the charge of causing harm by dangerous driving was proved - the defendant was convicted of the offence charged - matter remitted to the trial Magistrate - orders of the Magistrate set aside except for the order for disqualification from holding or obtaining a driver's licence.
Criminal Law Consolidation Act 1935 (SA) s 19A(3), s 269C and s 269O(1), referred to.
R v Cain [2011] SASCFC 135; Kroon v The Queen (1991) 55 SASR 476; Jiminez v The Queen (1992) 173 CLR 572; Police v Barber (2010) 108 SASR 520; R v Coventry (1938) 59 CLR 633, considered.

SCHWARK v POLICE
[2011] SASC 212
Magistrates Appeal
GRAY J:

This is an appeal from the dismissal of a complaint by a Magistrate on the ground of mental incompetence.
The defendant, Alex James Schwark, was charged with driving a motor vehicle in a culpably negligent manner, recklessly or at a speed or in a manner dangerous to the public and by that culpable negligence, recklessness or other conduct caused bodily harm contrary to section 19A(3) of the Criminal Law Consolidation Act 1935 (SA). This offence was alleged to have occurred on 8 May 2010 at Port Broughton.
The objective elements of the offence were admitted. However, it was the defence case that the defendant was not mentally competent to commit the offence. The Magistrate found that the defendant was not mentally competent and dismissed the complaint. The Magistrate concluded that the defendant was liable to supervision and ordered his immediate release on licence, fixing a limiting term of 12 months. It is apparent that the Magistrate acted in making the above orders under section 269O(1)(b)(ii) of the Criminal Law Consolidation Act.
The Magistrate disqualified the defendant from holding or obtaining a driver’s licence for a period of 12 months commencing at 12:01 am on 1 April 2011.
An appeal by the defendant was lodged complaining…

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 Schwark v Police

Details

AGLC: Schwark v Police [2011] SASC 212
Case: [2011] SASC 212
Decision Date: 9 December 2011

CaseChat Overview and Summary

The defendant, Schwark, was charged with causing harm by dangerous driving under section 19A(3) of the Criminal Law Consolidation Act 1935 (SA). The objective elements of the offence, namely that the defendant's dangerous driving caused serious injury to his passenger, were admitted. The central issue before the court was whether the defendant was mentally competent to be held criminally liable for the offence. The Magistrate found that the defendant was not mentally competent to commit the offence and, accordingly, acquitted him. The defendant appealed against the Magistrate's decision to disqualify him from holding or obtaining a driver's licence for 12 months, but the appeal was abandoned before the appeal hearing. The police cross-appealed, challenging the finding that the defendant was not guilty by reason of mental incompetence.

The court examined the issue of the defendant's voluntariness and mental competence to commit the offence. The court held that the defendant's driving was a willed act and, viewed objectively, the driving was dangerous and caused serious injury to his passenger. The court concluded that the charge of causing harm by dangerous driving was proved, and the defendant was convicted of the offence charged. The cross-appeal by the police was allowed, and the matter was remitted to the trial Magistrate. The orders of the Magistrate were set aside, except for the order for disqualification from holding or obtaining a driver's licence.

Orders