Reported Decision : (2002) 133 A Crim R 104 New South Wales Court of Criminal Appeal CITATION : R v Saunders [2002] NSWCCA 362 FILE NUMBER(S) : CCA 60839/01 HEARING DATE(S) : 19 August 2002 JUDGMENT DATE : 29 August 2002 PARTIES : Shane Saunders - Appellant Crown - Respondent JUDGMENT OF : Hodgson JA at 1; Simpson J at 2; Smart AJ at 44 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0324 LOWER COURT JUDICIAL Mahoney DCJ OFFICER : COUNSEL : P Ingram - Crown L Flannery - Appellant SOLICITORS : SE O'Connor - Crown DJ Humphreys - Appellant CATCHWORDS : dangerous driving causing death - dangerous driving causing grievous bodily harm - s52A(1) and (3) Crimes Act 1900 - test when determining dangerous driving - distinction between negligence and dangerous driving - no onus of proof on accused LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Rules R v Goodman (unreported, NSWCCA 10 December 1991) CASES CITED: McBride v the Queen (1966) 115 CLR 44 R v Hopton (unreported, NSWCCA, 8 October 1998) DECISION : (i) appeals against conviction upheld; (ii) each conviction quashed; (iii) the sentences imposed quashed; (iv) a new trial be held. IN THE COURT OF CRIMINAL APPEAL 60839/01 HODGSON JA SIMPSON J SMART AJ 29 August 2002 REGINA v Shane SAUNDERS Judgment 1 HODGSON JA: I agree with Simpson J. 2 SIMPSON J: On 20 September 2001 the appellant was convicted by a jury on all counts on an indictment charging one offence of dangerous driving causing death and two offences of dangerous driving causing grievous bodily harm. On the charge of dangerous driving causing death he was sentenced to imprisonment for four years with a non-parole period of two years. On each of the charges of dangerous driving causing grievous bodily harm he was sentenced to imprisonment for three years with a non-parole period of eighteen months. All sentences were specified to be served concurrently, commencing on 20 September 2001, the date of the convictions. 3 The appellant now appeals against the conviction and seeks leave to appeal against the sentences. the Crown case 4 The Crown case was that, at about 2.00 p.m. on Thursday 1 April 1999, the appellant was the driver of a Holden Commodore sedan. He was travelling in a northerly direction on the Pacific Highway, two kilometres south of a village called Coopernook, which is north of Taree. Accompanying him, in the front passenger seat, was his de facto wife, Malisa Anne Minette. 5 Rain began to fall, and soon became very heavy, even torrential. Visibility was very poor. The appellant's vehicle collided with a campervan travelling in the south bound lane. The appellant's Commodore broke in half. One half continued to travel down the road, coming to rest 51 metres north of the campervan. As a result of the collision Ms Minette was thrown from the Commodore and died. Her body was found 38 metres north of the campervan. The occupants of the campervan, Alvaro Manonella, and Marcella Zaricky, suffered grievous bodily harm. 6 The speed limit applicable to the section of the road on which the impact occurred was 100 kilometres per hour. The speed of the appellant's vehicle, shortly before the collision, was variously estimated at 90 – 100 kph, and about 130 kph. Each of these estimates was given by a witness who was the driver of a vehicle, also travelling north, and who had been overtaken by the appellant in his Commodore. One of these witnesses described the appellant's car as aquaplaning once or twice before overtaking his vehicle. The other witness described seeing a water mist, two red lights, and the mist clearing, the Commodore turn sideways very slowly and move to the opposite side of the road, and veer into the south bound lane in the path of the campervan. 7 The Crown contention was that, having regard to the weather conditions, the speed at which the appellant was driving was excessive, such as to be dangerous to another person or persons (see s52A, Crimes Act 1900). 8 Ms Minette's mother, Sylvia Brown, gave evidence of a conversation (part of which the appellant denied) which she alleged she had with the appellant on 13 April 1999. On her evidence, the appellant said: "I was shunted from behind, there were some hoons behind me and I lost control." 9 The Commodore was examined by a police automative engineer, who found no evidence of mechanical defect that could have caused the collision, and no evidence of tyre failure. the defence case 10 The appellant gave evidence. He gave an account of his (and Ms Minette's) movements on the day of the accident. They had, he said, spent some time during the morning with friends at the Taree RSL Club, where they played Keno and he drank one schooner and one midi of beer. They left to return to his home for a barbecue and a game of darts, the appellant and Ms Minette in the Commodore. The rain was then only a light to medium drizzle, although his windscreen wipers were switched to high. After he came onto the highway his speed was 90 kph. At that point, it seems, the north bound section of the highway consisted of a single lane. Shortly after, the highway widened to provide a second north bound lane. The appellant's vehicle was at about the point where the second lane commenced when the rain became very heavy and visibility deteriorated. He overtook one of the vehicles in front of him. This manoeuvre took some time. He was travelling at 90 kph. He continued driving and approached a bend which he began to negotiate. He said: " … it just felt like I either hit a pool of water, or I got shunted from behind, just with a jerky motion." 11 He agreed that he said words to this effect to Ms Brown, but denied saying that there were "hoons on the road". The car began to "slip and slide, aquaplane". He took his foot off the accelerator and attempted to slow the vehicle by applying the brakes gently so that the brakes would not lock. As soon as he did this, the car began to turn "in a clockwise motion", with the front of the vehicle eventually facing east. He became aware of the presence of the campervan only after the collision. He lost consciousness and was taken to hospital. 12 A traffic engineer, Mr Fred Schnerring, was called in the defence case. He spoke of "asymmetrical tyre drag" which can occur when one tyre, usually one of the front tyres, strikes a puddle of water on the road, causing the vehicle to slow on that side and veer in the direction of the tyre. The tendency is increased at speeds in excess of 70 kph. 13 Mr Schnerring also spoke of the phenomenon known as "aquaplaning", which occurs when, again as a result of water on the road, the tyre of a vehicle loses contact with the road surface, causing loss of control of the vehicle. In these circumstances the application of brakes could cause the car to spin. This tendency also is increased at speeds over 70 kph. The tendency to slide or spin could be increased by the application of brakes. * * * 14 The charges were brought under s52A(1) and (3) of the Crimes Act 1900. S52A(1) provides as follows: " 52A. Dangerous driving: occasioning death (1) Dangerous driving occasioning death A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle: (a) under the influence of intoxicating liquor or of a drug…, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years." 15 Sub-s(3) is in relevantly identical terms, except that occasioning grievous bodily harm replaces occasioning death. 16 The section replaces a previous, now repealed, section which created an offence of culpable driving causing death or grievous bodily harm, constituted by driving in a manner dangerous to the public, as distinct from dangerous to "another person or persons". The change is immaterial for present purposes, and decisions concerning the interpretation and application of the repealed section are applicable to the present case. 17 R v Goodman (unreported, NSWCCA 10 December 1991) is such a decision. As in the present case, the only issue before the jury was whether the appellant was driving his motor vehicle in a relevantly dangerous manner. This Court (constituted by Hunt CJ at CL, Allen and Badgery-Parker JJ) wrote: "The test as to whether the manner of the appellant's driving was dangerous to the public is an objective one. The Crown did not have to prove that the appellant intended the management and control of his vehicle be dangerous to the public, or even that he realised that his conduct was or would be dangerous to the public. His conduct had to be judged according to an objective standard fixed in relation to all users of the public roads generally. The jury had to determine whether the conduct of the appellant amounted to a serious breach of what they considered to be the proper management and control of a vehicle upon a public road, so serious as to be in reality a potential danger to other persons on or in the vicinity of that roadway. It has been repeatedly emphasised that it is very much a matter for the jury to conclude whether the manner of driving established by the Crown constituted a potential danger to the public…" 18 McBride v the Queen (1966) 115 CLR 44 is an earlier case concerning the same section, decided by the High Court. Barwick CJ wrote: "Naturally the first matter in the case of a charge that the vehicle has been driven in a manner which is dangerous to the public is to determine and present to the jury what precisely is the manner of driving which the Crown alleges the accused has pursued and which it claims is dangerous to the public. If that manner of driving is not by its very description potentially dangerous to the public, it would be necessary to isolate for the jury the features of it which the Crown charges to be so dangerous. … But in any case, the jury would need to be told what the expression 'dangerous to the public' as used in the section involves. The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all the circumstances, or because of the particular circumstance surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. … This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality and fact of danger to the public in the manner of driving, whether realised by the accused or not, which makes it dangerous to the public within the meaning of the section. This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby. These distinctions make it imperative that the jury be specifically directed as to the criteria to be applied and the distinctions to be observed in determining whether any particular speed or manner of driving can have the quality, intrinsic or occasional, of being dangerous to the public within the meaning of the section: and that the particular features of the driving charged as in breach of the section be isolated for the jury and related to these criteria. … The quality of the driving may be deduced from the resultant facts. But where it is sought to make out the relevant quality of the driving by inference from the contemporaneous impact and its consequences, it seems to me to be the more necessary to carefully apprise the jury of the matters to which I have called attention and to keep before them the precise issue they have to try. Because the charge is unlikely to be laid unless the impact has caused death or grievous bodily harm, there will always be before the jury the serious result of the occurrence and the temptation to try an issue of negligence as between the driver and the injured party will naturally be most marked." (pp 49 – 51) 19 Finally, relating to a charge brought under the section in its current form, in R v Hopton (unreported, NSWCCA, 8 October 1998) Spigelman CJ, with whom Abadee and Ireland JJ agreed, said: "In a case in which inattentiveness is the basis of the allegation that the manner of driving constituted a manner which was dangerous for the purposes of the section, it is often the case that the jury will not be properly instructed if they are left to speculate as to the level of negligence which may be appropriate. In a context in which there was a specific Crown submission, which her Honour summarised without comment, that was consistent with a lower level of negligence than is required for the commission of the offence, it would have been appropriate, and will usually be appropriate, for the trial judge to direct the jury in more specific terms by warning them that mere negligence would not be sufficient. The jury must be left in no doubt that the level of seriousness is not subject to exceptions, in the sense that the lower standard (of negligence) is not sufficient for the purpose of the offence. In circumstances where inattentiveness is the sole ground, it will often be found to be the case that the jury should be instructed as to the relevant distinctions." grounds of appeal 20 Three grounds of appeal against conviction were advanced. They were framed in the following terms: "1. His Honour failed to adequately direct the jury about the test they should apply when determining whether the appellant drove dangerously and the judge erred in not directing the jury as to the distinction between negligence and dangerous driving. 2. His Honour erred in failing to tell the jury that there was no onus upon the accused. 3. His Honour erred by repeating the Crown submission to the effect that the fact that the Commodore broke in half supported the Crown case that the accused was going too fast for the circumstances, in the absence of any expert evidence to support that submission." ground 1 21 As I have mentioned, the nub of the Crown case was that the speed at which the appellant was driving was excessive in the circumstances, and excessive in such a way as to render his driving dangerous to another person or persons. In summing up, the trial judge acknowledged that the Crown was unable to place before the jury a body of evidence which firmly established the actual speed at which the appellant was driving. He then said: "What matters is whether or not the Crown has established beyond reasonable doubt to your satisfaction that the speed, whatever it was, under the circumstances prevailing at the time, amounted to driving in a manner dangerous to the public. You see, it might sound like a bit of a mouthful, driving in a manner dangerous to the public, but you have only got to stop for a minute and realise that you can drive in a manner dangerous to the public at what might be quite a modest rate of progress. How many times have you got out of your car up here at Woolies underneath the carpark, and seen somebody zip down the lane in a car and step back and say 'Gee that was fast'. It might have only been 25 kilometres an hour, but under the circumstances you would be saying 'No one should drive at that speed in a car park.' The Crown is saying in this case whether it was 130 kilometres an hour or 120 kilometres an hour or whatever it was, whatever the speed was, there is a body of evidence that is placed before you saying that it was too fast for the circumstances that were prevailing at the time and likely to be encountered by someone driving through those sort of weather conditions." 22 His Honour then moved on to deal with other matters. He did not, at this point in the summing up (or in the course of the main body of the summing up) give any direction in accordance with Goodman, or in accordance with McBride. 23 At the conclusion of the summing up the Crown Prosecutor asked the trial judge "to go over the objective test that has to be applied by the jury". In response, his Honour said: "Members of the jury, the Crown Prosecutor is quite correct. I did not formally direct you on this point of law. [Counsel for the appellant] mentioned it in his final address to you but I think the Crown prosecutor has correctly reminded me that I omitted to say this to you. When you are determining whether or not the speed was too fast for the circumstances such as to amount to driving in a manner dangerous you do not say to yourself, 'Well, what did the driver have in mind? What did he think about his speed?'. When the Crown says it is an objective test that is the opposite to a subjective test. You probably know what that means, but a subjective test is: perhaps here in this courtroom, subjectively, I think that the sound effects coming from out on the veranda are very distracting from time to time. That is my subjective approach to things. Other people in the courtroom might think differently. An objective test is a group of twelve jurors using their common sense to form a common sense view of the test. It is not controlled by what the driver himself had in mind. You see, I think it was [counsel for the appellant] put to you, people do not get into a motor car and get behind the wheel and say, 'I'm going to crash this thing'. No one intends to do that unless they are flying American Airlines planes into World Trade Centres. You know, suicide missions like that. But there is no suggestion in this case that this was anything in any way at all intentionally done by Mr Shane Saunders. And, members of the jury, you have to understand it is an objective test. I said to you, you put out of your mind any idea of doing your best to make sure that Mr Manonella, and Ms Zaricky do not lose a common law claim if they want to claim damages from Mr Saunders. …" 24 Counsel for the appellant handed to his Honour a copy of the decision in Goodman, saying that it explained the objective test in a very short paragraph. The judge then told the jury that the case was a unanimous decision of this Court in 1991 and read the passage commencing "The test as to whether the manner of the appellant's driving was dangerous to the public is an objective one" and concluding "… on or in the vicinity of that roadway." He said: "Well that is the way the Court of Criminal Appeal puts it. You have heard that, and that is obviously more important than the way I put it." 25 He then directed the jury to retire to commence deliberations. 26 A number of complaints are made about the way these directions were given to the jury. Firstly, complaint is made that the Goodman direction was not given in the body of the summing up, and that when it was given, it was given in an "almost offhand manner"; that there was no attempt to relate it to the facts of the case, and that, accordingly, its import was not fully brought home to the jury. 27 Secondly, it was complained that there was no attempt to differentiate between negligence and dangerous driving, as required by McBride and Hopton. 28 In response, the Crown has referred to a number of additional passages in the summing up. These include a direction as to the essential ingredients of the offences, and a number of references to the evidence concerning the speed at which the appellant was driving the vehicle and the weather conditions at the time. In my view, these passages do not advance the case. For example, the first passage to which the Crown points, that in which his Honour was stating the essential ingredients of the offences, reads as follows: "Now, driving in a manner dangerous in the circumstances of this case the Crown has sought to establish by putting evidence before you and asking you to be satisfied beyond reasonable doubt that the speed at which the Holden Commodore was driven by Mr Saunders, under the weather circumstances prevailing at the time, made his manner of driving dangerous to his own passenger and the two occupants of the campervan." 29 Immediately following this, his Honour said: "The Crown is saying 'well look, we ask you to find that we have proved beyond reasonable doubt that whatever that speed was, it was too fast for those weather conditions, and it was that which created a manner of driving which was dangerous to his passenger and to the two people in the campervan.'" 30 These words, or words to similar effect, were repeated a number of times during the course of the summing up, but there was no point at which the concept of dangerous driving, as distinct from negligent driving, was elucidated. Nor were the directions given, particularly the Goodman direction when it was eventually given, related to the facts of the case. 31 Further, in my opinion, the direction concerning the objective test as distinct from a subjective test that was given initially in the summing up could not have helped the members of the jury to understand the task they were to undertake. 32 On behalf of the Crown it was contended that, as the Goodman direction was ultimately given, any preceding defects had been cured. I do not accept that this is so. I think counsel for the appellant was on firm ground when she argued that the direction was given in an offhand manner, and not given in such a way as to direct the jury's attention in a meaningful way to the test they were to apply. 33 This was a case which presented significant difficulties to the jury. The evidence of the nature of the appellant's driving was scanty. It was acknowledged by his Honour, on more than one occasion, that the evidence did not leave open any room for a firm conclusion as to the actual speed at which the appellant was travelling. Certainly, the evidence of the weather conditions was such as to dictate that a prudent driver would exercise additional care, both in attentiveness and in speed. But that simply meant that additional care had to be taken in the directions to the jury to ensure that its members focussed properly upon what the appellant actually did, as distinct from the result of his driving. This was a case in which a jury not properly instructed might well have reasoned, impermissibly, from the devastating consequences, that the appellant's driving must have been dangerous. Such an approach would be contrary to the injunction contained in McBride and would be erroneous. The directions given did nothing to deflect the jury from slipping into that error. 34 I am satisfied that the direction was deficient, and that the appellant may have lost a fair chance of an acquittal. ground 2 35 By ground 2 it is complained that although his Honour directed the jury correctly that the onus of proof lay upon the Crown, he failed also to tell them that no onus lay upon the accused, and that, even in the circumstance that he gave sworn evidence himself, this position did not change. It was conceded that, the point not having been taken at trial, leave under Rule 4 of the Criminal Appeal Rules is required if the ground is to be argued. 36 Part of the argument depended upon what was described as "an aggressive exchange" which took place between counsel for the appellant and the trial judge during Mr Schnerring's evidence. I do not see this as material to the question. However, I do think that a complete direction involves not only telling the jury that the onus of proof lies upon the Crown, but also that no onus is cast upon, or assumed by, an accused person. This is particularly so where an accused person presents a positive case, either by giving evidence himself or herself, or by adducing evidence from witnesses. 37 I am not, however, persuaded that the omission to give such a direction in this case occasioned a miscarriage of justice, and this is reinforced by the absence of any request by experienced counsel who appeared for the appellant for such a direction. Plainly, that was not occasioned by any tactical decision, but it may be inferred that, in the atmosphere of the trial, counsel did not perceive any prejudice to the appellant. In these circumstances I would not grant leave under Rule 4 to argue ground 2. ground 3 38 By ground 3 criticism is made of the approach taken by the trial judge to a submission made to the jury during the course of address by the Crown Prosecutor. This was a submission that the fact that the Commodore had broken in two was some evidence that the appellant had been driving at an excessive speed. 39 The Crown did not attempt to prove the appellant's speed by calling expert evidence. The only evidence of speed was from the two independent witnesses, who were both driving on the same road, and were overtaken by the appellant. 40 I think there is substance in the appellant's complaint. The dynamics of the fracture of the Commodore was not a subject which should have been left to the jury to speculate upon. It may well be (as the ordinary person might think) that the effect of the impact on the Commodore was indicative of its speed; but it may equally be that a person versed in physics could throw a different light upon that circumstance. At the very least, the Crown having made the comment, the judge should have alerted the jury to the dangers of reaching a conclusion on a matter of which they had no expert evidence. 41 I am of the view that grounds 1 & 3 have been made good. The consequence is that the conviction must be quashed. 42 The question then arises whether a new trial should be ordered. On the major count the appellant was sentenced to imprisonment for four years, with a non-parole period of two years, which will expire on 19 September 2003. This was a second trial, the jury in the first trial having failed to reach a verdict. That makes the prospect of a third trial unattractive. However, these are very serious charges, and it would be open to a jury, properly instructed, to arrive at the same result. In my opinion, therefore, this Court should order a new trial. 43 I have concluded that it would be inappropriate to rule upon the application for leave to appeal against sentence. Should there be convictions on a third trial, it will be a matter for the judge of that trial to determine sentence, taking into account all relevant matters, including the time spent in custody and the impact of the appellant's having faced trial on three occasions. 44 The orders I propose are: (i.) appeals against convictions upheld; (ii.) each conviction quashed; (iii.) the sentences imposed quashed; (iv.) a new trial be held. SMART AJ: I agree with Simpson J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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