Citation: R v Stanyard [2012] NSWDC 78
Court: District Court of New South Wales
Date: 25 May 2012
Judge: Berman SC DCJ
Background
The accused was driving a soft-top Suzuki Sierra four-wheel drive vehicle through a private sand dune park near Boat Harbour, south of Sydney, on 7 February 2009. Two young women were seated in the rear of the vehicle. After completing one run over a sand dune, the accused drove the vehicle back over the same dune a second time, this time with only the two female passengers remaining inside.
As the vehicle crested the steep face of the dune, it became airborne, rotated forward, and landed on its roof. Both passengers suffered grievous bodily harm. One sustained broken arms; the other suffered a catastrophic spinal injury leaving her a tetraplegic with no sensation or movement below the shoulders.
The accused was charged on two counts of dangerous driving occasioning grievous bodily harm, one count for each passenger. He pleaded not guilty and elected a judge-alone trial.
Legal Issues
- Whether the accused was driving the vehicle in a manner dangerous to another person or persons immediately before it overturned
- Whether the Crown had established each element of the offence beyond reasonable doubt, including the disputed element of dangerous manner of driving
- How to treat contested eyewitness and expert evidence about the vehicle's speed and behaviour at the crest of the dune
- Whether certain hearsay evidence attributed to a witness required a formal warning under section 165 of the Evidence Act
Decision
Three of the four elements of each charge were undisputed. The accused was the driver, the vehicle was involved in an impact, and both passengers suffered grievous bodily harm as a result. The sole contested element was whether the driving was dangerous at the moment of impact.
Berman SC DCJ found that the vehicle became airborne as it crested the dune. This conclusion rested on three pillars: eyewitness accounts describing the vehicle leaving the ground; an absence of tyre tracks on the steep face of the dune where tracks would have been expected had the vehicle maintained ground contact; and expert evidence, with one expert characterising the vehicle becoming airborne as highly likely rather than merely possible.
The court accepted evidence, including expert analysis, that the vehicle was travelling at a minimum of approximately 22.6 kilometres per hour at the crest. Driving at a speed sufficient to cause a soft-top vehicle to become airborne while carrying passengers over a steep sand dune constituted, in all the circumstances, driving in a manner dangerous to other persons.
On the disputed hearsay evidence concerning a statement allegedly made by a third party, the court found it unnecessary to resolve the issue, noting that guilt was otherwise established overwhelmingly without reference to that material.
Orders Made
• The accused is found guilty on both counts
Key Takeaways
- Dangerous driving occasioning grievous bodily harm requires proof beyond reasonable doubt that the vehicle was driven in a manner dangerous to another person at the time of the impact; the other three elements (identity, impact, and grievous bodily harm) may be conceded or clearly established on uncontested evidence.
- A conviction does not require the Crown to establish the truth of every witness's account; contradictions in Crown witnesses' evidence do not automatically defeat the prosecution case where the essential elements are otherwise proved.
- In a judge-alone trial, the trial judge must explicitly identify and set aside any emotional response to distressing facts, applying the same dispassionate scrutiny a jury would be directed to apply.
- Where guilt is proved overwhelmingly by independent evidence, a court need not resolve every contested factual dispute, including questions about the admissibility or reliability of hearsay evidence.
- Driving a soft-top vehicle at a speed that causes it to become airborne while crossing a steep sand dune with passengers on board was found to constitute dangerous driving in the circumstances of this case; the soft-top construction, the steepness of the descent, and the presence of passengers in the rear were all relevant to that assessment.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 165 (unreliable evidence warning)
Cases cited: None stated in the judgment.