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Court of Criminal Appeal 29 August 2002

R v Saunders

[2002] NSWCCA 362

Also reported as (2002) 133 A Crim R 104
HomicideTraffic & driving
DANGEROUS DRIVING CAUSING DEATH S52A(1) AND (3) CRIMES ACT 1900 TEST WHEN DETERMINING DANGEROUS DRIVING NO ONUS OF PROOF ON ACCUSED

Citation: R v Saunders [2002] NSWCCA 362
Court: NSW Court of Criminal Appeal
Date: 29 August 2002
Judge(s): Hodgson JA, Simpson J, Smart AJ

Background

The appellant was convicted in the District Court on one count of dangerous driving causing death and two counts of dangerous driving causing grievous bodily harm, following a collision on the Pacific Highway near Coopernook in heavy rain. He was sentenced to four years imprisonment on the primary count, with all sentences to be served concurrently.

The Crown's case was that the appellant had been driving his Holden Commodore at excessive speed given the torrential conditions, causing him to lose control and veer into oncoming traffic. His vehicle collided with a campervan, killing his front-seat passenger and seriously injuring both occupants of the campervan. Two independent witnesses estimated the appellant's speed at between 90 and 130 kilometres per hour, and one described the vehicle aquaplaning before the impact.

The appellant gave evidence that he had been travelling at 90 kilometres per hour, that the vehicle encountered water on the road causing it to aquaplane, and that he had attempted to brake carefully. A defence traffic engineer gave evidence about the phenomena of aquaplaning and asymmetrical tyre drag, both of which can cause loss of vehicle control, particularly at speeds above 70 kilometres per hour. This was a second trial, the first having ended without a verdict.

  • Whether the trial judge's directions to the jury incorrectly placed an onus of proof on the appellant in relation to the cause of the loss of vehicle control
  • Whether the trial judge should have directed the jury on the risks of relying on the extent of damage to the vehicle as evidence of speed, in the absence of expert evidence on that topic
  • What the correct legal test is for determining whether driving was "dangerous" under section 52A of the Crimes Act 1900

Decision

The Court upheld the appeal on two grounds. First, the trial judge's directions were found to have effectively placed an onus on the appellant to establish that the loss of control was caused by aquaplaning or another non-speed-related factor. The correct position is that the Crown bears the onus throughout: it must prove beyond reasonable doubt that the driving was dangerous. No part of that burden shifts to an accused.

The Court confirmed the applicable test for dangerous driving is an objective one, drawn from R v Goodman and McBride v the Queen. The jury must determine whether the conduct in question fell below the standard expected of a reasonably careful driver, assessed by reference to all the circumstances, including weather, road conditions, and traffic. The distinction between mere negligence and dangerous driving turns on the degree of departure from that standard: something more than minor inadvertence is required, but proof of intent is not.

On the third ground, the Court found that the Crown Prosecutor's submission inviting the jury to treat the fact that the Commodore broke in two as evidence of the appellant's speed was problematic. No expert evidence had been called on the dynamics of the vehicle's fracture, and the trial judge should have warned the jury against speculating on a technical matter beyond ordinary knowledge. The absence of that warning was a further error.

Despite acknowledging that a third trial would be the appellant's third time facing these charges, and that the non-parole period on the primary count was approaching expiry, the Court ordered a new trial. The charges were serious, and a properly instructed jury could lawfully reach the same result.

Orders Made

  • Appeals against conviction upheld
  • Each conviction quashed
  • Sentences imposed quashed
  • A new trial to be held

Key Takeaways

  • Under section 52A of the Crimes Act 1900, the test for dangerous driving is entirely objective: the jury assesses the accused's conduct against the standard of a reasonably careful driver in the same circumstances, without any requirement to prove intent or awareness of danger.
  • The onus of proof rests with the Crown throughout a dangerous driving trial. A jury direction that effectively requires an accused to establish an innocent cause for loss of vehicle control constitutes a misdirection.
  • Dangerous driving requires a meaningful departure from reasonable care, placing it above mere negligence, but proof of deliberate or conscious risk-taking is not an element of the offence.
  • Where the Crown invites a jury to draw inferences from technical or scientific matters, such as the dynamics of vehicle damage, a trial judge should warn the jury against speculating in the absence of expert evidence on the point.
  • Decisions interpreting the repealed "culpable driving" provision remain applicable to section 52A offences, given the substantive similarity between the two formulations.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), sections 52A(1) and 52A(3)
- Criminal Appeal Rules

Cases
- R v Goodman (unreported, NSWCCA, 10 December 1991)
- McBride v the Queen (1966) 115 CLR 44
- R v Hopton (unreported, NSWCCA, 8 October 1998)