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Court of Criminal Appeal 3 October 2014

Aiken v R

[2014] NSWCCA 213

Traffic & driving
CRIMINAL LAW APPEAL AGAINST CONVICTION DANGEROUS DRIVING OCCASIONING DEATH JUDGE ALONE TRIAL VERDICT NOT UNREASONABLE OR UNSUPPORTED

Citation: Aiken v R [2014] NSWCCA 213
Court: Court of Criminal Appeal, New South Wales
Date: 3 October 2014
Judge(s): Hoeben CJ at CL, Rothman J, R A Hulme J

Background

The appellant was convicted after a judge-alone trial in the District Court of driving in a manner dangerous to other persons, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW), whereby a collision occurred that caused the death of her 16-year-old nephew, who was a front-seat passenger. The incident occurred in October 2010 on Princes Highway north of Batemans Bay, when the appellant moved into a right-turn only lane and then pulled into the path of an oncoming vehicle travelling at approximately 90 kilometres per hour.

Evidence at trial indicated the appellant had consumed cannabis before driving, to an extent that some degree of impairment to her driving ability was established. The driver of a car behind the appellant and the driver of the oncoming vehicle both gave consistent lay evidence that the appellant's vehicle hesitated briefly then moved directly into the path of the oncoming car, leaving its driver no realistic opportunity to swerve or brake in time.

The appellant was sentenced to 2 years and 6 months' imprisonment with a non-parole period of 1 year and 3 months. The appeal was brought against conviction only.

  • Whether the trial judge gave sufficient reasons linking the findings of fact to the conclusion that the appellant's driving was dangerous to other persons.
  • Whether the verdict of guilty was unreasonable or could not be supported by the evidence.

Decision

Ground 1: Insufficiency of reasons

The appellant argued the trial judge's reasons amounted to no more than a recitation of legal principles and findings of fact, without any reasoning process connecting them, and that the findings were equally consistent with negligent driving rather than dangerous driving. The Court of Criminal Appeal rejected this. R A Hulme J held that the judge's stated conclusion, which identified that the appellant drove into the path of a vehicle travelling at approximately 90 km/h with a clear view available to her, creating an impossible situation for the oncoming driver with an inevitable heavy impact, more than adequately explained why the driving met the applicable test for dangerousness.

The relevant test, drawn from McBride v The Queen, requires that the driving be a serious breach of proper vehicle management so serious as to be, in reality and not speculatively, potentially dangerous to others. The Court noted there was no need for the judge to state this conclusion in those precise terms because, as Crown counsel put it, it was "obviously so."

Ground 2: Unreasonable or unsupportable verdict

The appellant contended the evidence did not establish the degree of cannabis impairment, and that the driving conduct was equally consistent with negligent rather than dangerous driving. The Court dismissed this ground. The trial judge's findings, which were not challenged on appeal, were that the appellant's vehicle moved from a stationary position into the path of an oncoming vehicle travelling at speed, in circumstances where the oncoming driver had no reasonable opportunity to avoid the collision. Rothman J added that, on his own reading of the trial evidence, he was independently satisfied the verdict was not unreasonable or unsupported.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A trial judge conducting a judge-alone trial need not articulate each step of the reasoning process in formulaic terms, provided the stated conclusion adequately explains how the findings of fact satisfy the applicable legal test.
  • Under s 52A(1)(c) of the Crimes Act 1900 (NSW), dangerous driving requires a serious breach of proper vehicle management that is, in reality and not speculatively, potentially dangerous to others. The test is drawn from McBride v The Queen and confirmed in subsequent High Court authority.
  • Where findings of fact are not challenged on appeal, the Court of Criminal Appeal's task in assessing whether a verdict is unreasonable is confined to asking whether those findings, taken as they stand, were capable of supporting the conviction beyond reasonable doubt.
  • No error was established in the trial judge's preference for consistent lay eyewitness evidence over competing expert engineering evidence, where the judge expressly identified and resolved the tension between those sources.
  • Cannabis impairment evidence need not establish a precise degree of incapacity to be relevant. The trial court treated evidence of some level of impairment as an explanation for the manner of driving, rather than as a necessary element of the Crown case standing alone.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c)

Cases:
- Fleming v The Queen [1998] HCA 68; 197 CLR 250
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- McBride v The Queen [1966] HCA 22; 115 CLR 44
- Jiminez v The Queen [1992] HCA 14; 173 CLR 572
- King v The Queen [2012] HCA 24; 245 CLR 588