W, AJ v Police - [2011] SASCFC 185

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Youth Court Appeal)
W, AJ v POLICE
[2011] SASCFC 185
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…

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.

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Details

AGLC: W, AJ v Police [2011] SASCFC 185
Case: [2011] SASCFC 185
Decision Date: 26 October 2011

CaseChat Overview and Summary

In the matter of *W, AJ v Police*, the appellant appealed against his conviction and sentence for three counts of aggravated careless driving, an alternative charge to causing death by dangerous driving. The appellant had been found not guilty of the more serious charges but convicted of the lesser offences, with the aggravating factor being the deaths of three victims. The appeal was heard by Gray, David, and Stanley JJ.

The central legal issues before the court were whether the trial judge erred in accepting the evidence of an eyewitness regarding the appellant's excessive speed over the appellant's own testimony, and whether the trial judge erred in finding that the appellant's speed was a substantial cause of the collision, despite accepting the appellant's evidence that he was momentarily blinded by cigar ash immediately before the accident. Additionally, the court considered whether the 3-year licence disqualification imposed was manifestly excessive.

The appellate court dismissed the appeal, finding that the trial judge had made careful factual findings and appropriately addressed any weaknesses in the eyewitness evidence concerning the appellant's speed. The court held that there was no reason to interfere with the trial judge's findings on speed. Furthermore, the trial judge had correctly applied the test for causation, concluding that the appellant's speed was a substantial cause of the collision, even if not the sole cause. The court found no basis to disagree with these conclusions. Finally, the period of licence disqualification was deemed not to be manifestly excessive, given the gravity of the offences.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would dismiss that ground of appeal.Conclusion I would dismiss the appeal against both conviction and sentence. STANLEY J: In this matter I have had the advantage of reading the reasons of Gray J and David J in draft. I agree with their reasons. I would dismiss the appeals against conviction and sentence.

Ratio Decidendi

Legal Principle Established

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