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Saturday, 30 April 2011

Burnouts are dangerous. (Who knew?)

In Nelson v Police [2011] SASC 55 the South Australian Supreme Court recently declared that doing burnouts and doughnuts next to a crowd of observers is recklessly dangerous conduct.

This is probably no great revelation to anyone who regularly endures the sounds of Billy the Buck doing burnouts in neighbouring streets, or to anyone who regularly graces our courts. What is surprising is the absence of judicial authority on the point! Perhaps it was so self-evident that no one ever bother seriously questioning it? The closest I could find was DPP v Massey [2008] VSCA 254, but that was a sentencing appeal where the burnouts were more background circumstances rather than the dangerous acts charged.

In Nelson, an undercover police officer video-recorded Mr Nelson driving his car in a cul-de-sac, doing burnouts and doughnuts while a crowd of around 60 people watched. He was convicted of doing an act likely to cause harm and being recklessly indifferent to whether such harm was caused, contrary to s 29(3) of the Criminal Law Consolidation Act 1935. The offence is roughly equivalent to reckless conduct endangering serious injury to others contrary to Crimes Act 1958 s 23.

On appeal, Mr Nelson relied on  the Court of Appeal's decision in R v Abdul-Rasool (2008) 18 VR 586 to argue that his driving wasn't likely to cause harm because a further act was required, such as him losing control of his car or a spectator getting too close. (I guess this is similar to the tension between probability and possibility that we see in the cases dealing with recklessness.)

In Abdul-Rasool the accused doused herself in petrol and threatened to set herself alight in a school principal's office. There were no realistic independent sources of ignition in the room, and a further voluntary act — such as her reaching for her matches or lighter and then trying to ignite herself — was required before any appreciable risk was created to anyone.

In Nelson, the Supreme Court considered the appellant's driving was inherently risky and did not require anything more.
[24] Mr Nelson’s driving was likely to cause harm because it was a form of driving that gave rise to a real risk that due to a momentary loss of control, or a slight miscalculation, his vehicle could move suddenly and unexpectedly in an unpredictable direction. There were spectators quite close to the vehicle. Having regard to the fact that there was no barrier between the spectators and the car, and no-one preventing spectators from moving wherever they wished, there was an evident risk of a spectator moving too close to the car. This combination of circumstances means that the act was one likely to cause harm. It might be harm resulting from a miscalculation or loss of control by Mr Nelson, or simply from someone getting too close to the car.

[25] An illustration will make my point. If I deliberately fire a shot that passes very close to the head of another, but I intend that the shot not hit the person, there is no difficulty, I consider, in saying that my act was likely to cause harm to another. The risk of the person moving the person’s head at the crucial moment, or the risk of my aim being out by a tiny amount, means that my act in deliberately shooting very close to the person’s head is an act likely to cause harm. That conclusion follows, even though the harm would result only if the person moved or my aim was not true.

[26] I agree that the manner in which the Magistrate expressed his conclusions at [18] is, strictly, incorrect. The real and substantial risk of harm was present. It was present because of the real possibility that a spectator would get too close or possibly that Mr Nelson would miscalculate or lose control. The risk of harm was present and inherent in the circumstances in which Mr Nelson drove his vehicle, and did not arise only if and when there was a miscalculation, or loss of control, or one of the spectators got too close.

[27] I also reject the submission that it cannot be said that it was the driving that was likely to cause harm. It is false logic to argue that the cause of the harm would be the spectator getting too close, or the loss of control of the motor vehicle. Each of these things is part of the overall circumstances.

[28] It is irrelevant that the spectators were not in Mr Nelson’s direct path, and equally irrelevant that he did not drive at them.

[29] The substantial risk of harm arose from the nature of the manoeuvre performed, the inherent risk of the sudden movement of the car, the proximity of the spectators and the absence of any protective barrier.

[30] For these reasons, I agree with the conclusion by the Magistrate that the driving in which Mr Nelson engaged was to be characterised as an act likely to cause harm to another.

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