Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Aiken v R [2014] NSWCCA 213 Hearing dates: 3 October 2014 Decision date: 03 October 2014 Before: Hoeben CJ at CL at [1]; Rothman J at [2]; R A Hulme J at [3] Decision: 1. Leave to appeal granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against conviction - dangerous driving occasioning death - judge-alone trial - whether insufficient reasons given for conclusion as to dangerous driving - whether verdict unreasonable or not supported by the evidence - no contention that findings of fact were not open to be made - findings amply supported conclusion as to dangerousness of driving - verdict not unreasonable or unsupported Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: Fleming v The Queen [1998] HCA 68; 197 CLR 250 SKA v The Queen [2011] HCA 13; 243 CLR 400 Category: Principal judgment Parties: Frances Mary Aiken (Appellant) Regina (Respondent) Representation: Counsel: Ms A Cook (Appellant) Ms T Smith (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2011/217080 Decision under appeal Date of Decision: 2013-12-13 00:00:00 Before: McLoughlin SC DCJ File Number(s): 2011/217080 Judgment 1HOEBEN CJ at CL: I agree with R A Hulme J. 2ROTHMAN J: I also agree with R A Hulme J. I confirm that upon my own reading of the evidence at trial I am satisfied that the verdict was not unreasonable or unsupported. 3R A HULME J: Frances Mary Aiken was found guilty after a judge-alone trial in the District Court of an offence of driving in a manner dangerous to other persons whereby her car was involved in an impact which occasioned the death of Mathew Aiken. 4This is an offence contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 10 years. His Honour Judge McLoughlin SC subsequently sentenced Ms Aiken to imprisonment for 2 years and 6 months, with a non-parole period of 1 year and 3 months, with effect from 13 December 2013. 5The appeal is only against conviction. 6The grounds of appeal assert that the judge failed to give sufficient reasons for his determination that the appellant was driving in a manner dangerous to other persons (ground 1) and that the verdict of guilty is unreasonable and cannot be supported by the evidence (ground 2). There is no merit in either ground. Overview of the case 7Just after 4.00pm on 7 October 2010 Ms Aiken was driving her car along Princes Highway just north of, and away from, Batemans Bay. She moved into a right-turn only lane in order to make a turn into Berrima Parade. She brought the car to a stop. She then commenced to make the turn but an oncoming car collided with the passenger side of her car. Tragically, her 16 year-old nephew, who was sitting in the front passenger's seat, was killed. There was evidence that Ms Aiken had consumed cannabis to an extent that her driving ability was impaired. 8Ms Aiken later told police that her car had stalled. There was an assertion by an expert called in the defence case that the driver of the oncoming car could have swerved to avoid the collision. 9The Crown case was that "she was driving in a dangerous manner [because] she drove her car into the path of the oncoming car at a point where there was just no opportunity for that car to avoid the collision and at a time when she was affected by substances". (AB 383.40) 10The Crown called to give evidence the driver of a car that was immediately behind Ms Aiken's car (Raymond Smith); the driver of the oncoming car that collided with her (Sandra McKenzie); the driver of a car waiting to make a left hand turn out of Berrima Parade to travel towards Batemans Bay (Paul Smart); a police officer who investigated the collision (Sergeant Mark Dudley); a pharmacologist who gave evidence of Ms Aiken's impairment from cannabis ingestion (Dr Judith Perl); and a consulting engineer who gave evidence of his interpretation of the collision (Mr Grant Johnston). The defence case comprised evidence from a consulting forensic engineer concerning his interpretation of the collision (Mr John Jamieson). The issue 11It was accepted by counsel for Ms Aiken that the only issue was whether the Crown had established beyond reasonable doubt that she was driving in a manner that was dangerous to other persons. This required the Crown to prove that the manner of driving was: "intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, ... 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": per Barwick CJ in McBride v The Queen [1966] HCA 22; 115 CLR 44 at 49-50; cited with approval in Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at 579 fn 23 and King v The Queen [2012] HCA 24; 245 CLR 588 at [32] per French CJ, Crennan and Kiefel JJ. 12In contrasting driving in a manner dangerous to the public from negligent driving, Barwick CJ continued in McBride v The Queen to say (at 50): "The concept with which the section [i.e. s 52A of the Crimes Act] 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." Ground 1 - insufficiency of reasons 13The learned trial judge gave reasons for his verdict of guilty which included a recitation of the principles of law he was required to apply (see Fleming v The Queen [1998] HCA 68; 197 CLR 250), a review of the evidence, findings of fact, and a conclusion expressed as follows: "I am satisfied beyond reasonable doubt that the Crown has established that the accused's driving amounts to a serious breach of proper management and control of a vehicle at the time of impact, in that she drove her vehicle into the path of the oncoming vehicle [which was] travelling at a speed of approximately ninety kilometres per hour with a clear view [available to Ms Aiken], putting Ms McKenzie into an impossible situation with the inevitability of a heavy impact occurring. In my view such driving was an extremely serious breach of the proper management and control of a vehicle and significantly more than momentary inattention or misjudgement." 14(In early passages of his judgment his Honour set out his findings of fact in more detail and I extract some of the passages below when dealing with Ground 2.) 15It was contended by Ms Aiken's counsel that these reasons were deficient in that they amounted to "a bare statement of the principles of law that the judge had applied and the findings of fact that he had made. What was required was an exposition of the reasoning process linking them and justifying the verdict." It was contended that the judge's findings "would have been as equally applicable to a finding of negligent driving" and "failed to identify why the driving of the appellant amounted to a serious breach of the proper management and control of the vehicle". 16In my view, the explanation provided by the judge in announcing the finding expressed in the above extract from his judgment more than adequately explained his conclusion that Ms Aiken's driving was dangerous to other persons in the sense explained in McBride v The Queen. The judge did not go on to say that the "serious breach of the proper management and control of [the] vehicle" was "so serious as to be in reality and not speculatively, potentially dangerous to others". That was not the subject of the argument raised under this ground. In any event, as Ms T Smith, counsel for the Crown put it succinctly in her submissions, there was no need for further elaboration by the judge "because it was obviously so". 17This ground must be rejected. Ground 2 - unreasonable or unsupportable verdict 18Principles relating to a ground asserting that a verdict of guilty is unreasonable or is not supported by the evidence are so well-known that there is no need to recite them once again in a judgment of this Court. A summary of them can be found in SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]-[14]. 19It was submitted that it was not open to the trial judge to be satisfied beyond reasonable doubt of Ms Aiken's guilt. The evidence did not establish the extent to which her driving ability was impaired by her cannabis consumption. The findings as to the speed at which, and manner in which, she was driving were just as consistent with a finding of negligent, rather than dangerous, driving. 20The judge found that there was some unsatisfactory features of the evidence of the two engineers. He preferred, and accepted, the evidence of Mr Smith (the driver the car behind Ms Aiken) and Ms McKenzie (the driver of the oncoming car). He found that their evidence was consistent as to what had occurred. 21His Honour stated: "In my view the evidence of both Ms McKenzie and Mr Smith is consistent. They both gave evidence in laymen's terms of the accused's vehicle moving out into the path of Ms McKenzie's vehicle, hesitating after a distance of twenty to thirty centimetres, and then moving off again as if to complete the turn, and in circumstances where little time was given for Ms McKenzie to deal with the emergency situation that had thus been created." (AB 19-20) 22After referring to aspects of the evidence of the engineers, he said: "In my view this matter is principally determined by the reliability or otherwise of Mr Smith and Ms McKenzie. [Defence counsel] attacks their reliability in a manner to which I have referred. The difficulty for him in that submission is, in my view, they both independently of each other have given general evidence of their observations which are consistent. It may be, as lay people, they do not have exact recall of distances and/or times. One would not expect that they would. From the evidence it is clear that the accused's vehicle was stationary for some time before proceeding to commence its right hand turn. During that time Ms McKenzie's vehicle was approaching the intersection of the Princes Highway and Berrima Parade. However it would appear to have been, as the accused's vehicle commenced to move, that there was a stutter or something occurred at twenty to thirty centimetres whilst it was still on its correct side of the road. I accept the evidence of Ms McKenzie and Mr Smith that that vehicle then commenced to make its right hand turn in a normal way straight into the path of Ms McKenzie's vehicle with little Ms McKenzie could do to avoid it. Much has been put that she could have swerved to the left or the right. Bearing in mind the reaction time that would be required by Ms McKenzie, she was no doubt further than the five metres or so that she said she was when the vehicle commenced to come into her path. The time required for the accused's vehicle to get from a standing start to the position of impact and Ms McKenzie's vehicle to impact, would not support a view that Ms McKenzie was only five metres away at that time. However, I accept that she was at a distance which would not have allowed her to swerve or to brake to avoid impact and it was the accused's driving in this manner which projected her vehicle into the roadway which occasioned impact and brought about the unfortunate death of the deceased." (AB 23-24) 23A little later, his Honour said: "[I]n my view [Ms Aiken's] vehicle did not stall in [Ms McKenzie's] path. ... I do not accept Mr Johnston's view of the speed of the accused's vehicle at the time of impact nor do I accept, if that be Mr Jamieson's evidence, that the vehicle was stationary. I accept the evidence of the lay witnesses, Ms McKenzie and Mr Smith, that it was moving and moving as a normal right hand turn at the time of impact." (AB 25) 24The judge noted that Dr Perl was unable to say definitively how much Ms Aiken's cannabis ingestion would have impaired her driving ability because it was not known how tolerant she was to the drug. But even if she did have a tolerance, Dr Perl said that there would still have been impairment to some extent. The judge described this as "an explanation" for the manner of Ms Aiken's driving. 25With there being no challenge in this Court to the findings of fact by the trial judge set out in the above extracts, there is no doubt that it was open to him to find beyond reasonable doubt that Ms Aiken was driving in a manner dangerous to other persons at the time of the collision. 26This ground must be rejected as well. Order 27I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 October 2014