W, AJ v Police

[2011] SASCFC 121

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Youth Court Appeal)

W, AJ v POLICE

[2011] SASCFC 121

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Stanley)

26 October 2011

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS - DRIVING WITHOUT DUE CARE AND ATTENTION

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - CAUSATION

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES - GENERALLY

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - APPEALS

Appeal against conviction and sentence – appellant was charged with three counts of causing death by dangerous driving – appellant was found not guilty of the three counts of causing death by dangerous driving – appellant was found guilty of three alternative charges of aggravated careless driving – the aggravating factor was causing the death of the three victims.

Trial Judge found the appellant guilty of aggravated careless driving on the basis of the appellant's excessive speed – trial Judge found it proved that the appellant was driving at substantially in excess of the speed limit – trial Judge did not find beyond reasonable doubt the specific speed or speed range of the appellant – whether trial Judge erred in accepting the evidence of an eye witness over the evidence of the appellant in relation to the speed at which the appellant was driving.

Appellant gave evidence that he was struck in the eye by cigar ash and was blinded moments before the accident – trial Judge accepted this as a reasonable possibility – trial Judge still found it proved that the appellant’s speed was a substantial cause of the collision – whether trial Judge erred in making that finding having accepted the appellant's evidence as reasonably possible.

Appellant was given a suspended sentence of 7 months detention and a licence disqualification of 3 years – whether the period of disqualification is manifestly excessive.

Held: Appeal dismissed – trial Judge made careful findings of fact and properly dealt with the weaknesses in the eye witness evidence – there is no reason to interfere with the trial Judge’s findings in relation to the speed of the appellant – trial Judge applied the correct test of causation and found that the appellant’s speed was a substantial cause of the collision, although arguably not the only cause – there is no basis for disagreeing with the trial Judge’s conclusions – the period of licence disqualification is not manifestly excessive given the seriousness of the offence.

Criminal Law Consolidation Act 1935 (SA) s 19A(1), s 19B(2), s 19B(3); Road Traffic Act 1961 (SA) s 45; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Youth Court Act 1993 (SA) s 22, referred to.
Royall v The Queen (1991) 172 CLR 378, applied.
R v Leaf-Milham (1987) 47 SASR…