Bouch v The Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0060

IAN BRUCE BOUCH	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, WEINBERG, WHELAN, PRIEST and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2017
DATE OF JUDGMENT:	20 April 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 86	First Revision: 14 August 2019 para [45]
RULING APPEALED FROM:	DPP v Bouch (Unreported, County Court of Victoria, Judge Chettle, 24 February 2016 (Conviction))

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CRIMINAL LAW – Appeal – Conviction – Culpable driving causing death and dangerous driving causing death or serious injury – Alternative offences under ss 318 and 319 and governed by s 422A(1) of the Crimes Act 1958 – King v The Queen (2012) 245 CLR 588 applied – Reference to ‘merited criminal punishment’ should not be part of directions in future – Comparison with civil liability may be helpful in directing juries as to s 318(2)(b) – Juries to be otherwise directed in accordance with R v De’Zilwa (2002) 5 VR 408 – Whether judge misdirected jury as to the sequence in which they should deliberate – Observations on the applicability of Stanton v The Queen (2003) 198 ALR 41 – R v Williamson (1807) 3 C & P 635, R v Bateman (1925) 19 Cr App R 8, Andrews v Director of Public Prosecutions [1937] AC 576, R v McCready [1967] VR 325, R v Horvath [1972] VR 533, R v Lucas [1973] VR 693, R v Stephenson [1976] VR 376, Nydam v The Queen [1977] VR 430, R v Shields [1981] VR 717, Wilson v The Queen (1992) 174 CLR 313, Simms v The Queen (2008) 148 A Crim R 433, R v De Montero (2009) 25 VR 694, LLW v The Queen (2012) 35 VR 372, Patel v The Queen (2012) 247 CLR 531, Medici v The Queen (2013) 39 VR 350, Smith v The Queen (2013) 39 VR 336, Vo v The Queen (2013) 39 VR 543, R v Wolter (No 2) (2015) 302 FLR 1 discussed – No substantial miscarriage of justice as conviction for culpable driving inevitable – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis SC with Mr J P W Maloney	Valos Black & Associates
For the Respondent	Mr D A Trapnell QC with Ms S M K Borg	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
WEINBERG JA:

We have had the considerable advantage of reading in draft the reasons for judgment prepared by Priest JA. We agree that it is a misdirection to include as an element of culpable driving causing death (‘CDCD’) that the jury must be satisfied that the driving in question ‘merited criminal punishment’. So far as jury directions in this State are concerned, the decision in R v De’Zilwa[1] should continue to be applied, save for the excision of any reference to meriting, or deserving, criminal punishment, or any such equivalent.
[1](2002) 5 VR 408.

We agree with Priest JA that the misdirection did not give rise to a substantial miscarriage of justice. That is because it created an additional bar to conviction, but also because the conviction for CDCD was inevitable, no matter how the expression ‘gross negligence’ was explained to the jury. We are, however, unable to agree that the manner in which the trial judge charged the jury with regard to lesser statutory alternatives provides an additional and discrete reason for concluding that the misdirection did not give rise to a substantial miscarriage of justice. As we explain, that is because the direction as to lesser alternatives was itself erroneous.

Ground three – the use of the expression ‘merits criminal punishment’

Ground three complains of the trial judge’s direction to the jury that, in order to find the appellant guilty of CDCD and negligent driving causing serious injury (‘NDCSI’), it was necessary that they be satisfied that his conduct ‘merited criminal punishment’.

In King v The Queen,[2] the High Court held that trial judges in this State should no longer use the expression ‘merits criminal punishment’, or some equivalent, when directing juries as to the elements of the offence of dangerous driving under s 319 of the Crimes Act 1958.[3] In so holding, the High Court overruled the decision of this Court in R v De Montero.[4]
[2](2012) 245 CLR 588 (‘King’).
[3]In R v De Montero (2009) 25 VR 694, this Court had held that this expression should form part of a jury direction regarding dangerous driving causing death.
[4](2009) 25 VR 694.

We agree with Priest JA that, largely as a result of several observations by the members of the High Court in King, but also for separate reasons, trial judges should in future no longer direct juries that the more serious offence of CDCD, contrary to s 318(2)(b) of the Crimes Act, requires them to be satisfied that the driving in question ‘merits criminal punishment’. The same applies to the lesser offence of NDCSI.

Justice Priest has, in his reasons for judgment, traced the history of the expression ‘merits criminal punishment’ back as far as Nydam v The Queen.[5] In fact, as the decision in King shows, judges in England have used language of that kind when directing juries for far longer than that.
[5][1977] VR 430, 444–5.

A case in point is Andrews v Director of Public Prosecutions.[6] There, the appellant, an employee of Leeds Corporation, was sent out late at night to assist a bus which had broken down. Driving at what was described as a ‘very fast speed’,[7] he overtook a car and, while on the wrong side of the road, struck a pedestrian. The victim died instantly. The appellant did not stop. He was convicted of manslaughter and appealed on the ground that the trial judge had misdirected the jury by telling them that they should convict if satisfied that he caused the death of the deceased by driving in a ‘reckless’ or ‘dangerous’ manner.
[6][1937] AC 576
[7]More than 30 miles per hour.

The House of Lords dismissed the appeal. Lord Atkin delivered the main speech. His Lordship referred to various treatises on the subject of manslaughter going back as far as the 17^th century. He noted that it had long been common in cases of medical malfeasance leading to death to charge manslaughter by gross negligence.

His Lordship traced the history of that particular form of manslaughter by referring primarily to R v Williamson.[8] That case concerned a male midwife[9] who was said, by his negligence, to have inflicted terrible injuries on a patient from which she subsequently died.
[8](1807) 3 C & P 635 (‘Williamson’).
[9]Described by Lord Atkin as an ‘accoucheur’.

Lord Atkin noted that Lord Ellenborough LCJ had said in Williamson:

To substantiate that charge [of manslaughter] the prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the most criminal inattention.

Lord Atkin commented that the use of the adjective ‘criminal’, as part of any attempt to define a crime, was perhaps not of great assistance. His Lordship went on to say that it was plain nonetheless that Lord Ellenborough had used that term merely to emphasise to the jury the very high degree of negligence that was required for this form of manslaughter.

Whether or not entirely logical, the practice of using a term such as ‘criminal’ in the context of negligence in order to differentiate civil from criminal liability has been followed for many years.

In R v Bateman,[10] a medical practitioner was charged with manslaughter by gross negligence. Lord Hewart LCJ posited the test for gross negligence in the following terms:

In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as ‘culpable’, ‘gross’ ‘wicked’, ‘clear’, ‘complete’. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against the State and conduct deserving punishment.[11]

[10](1925) 19 Cr App R 8.

[11]Ibid 11–12 (emphasis added).

Lord Atkin, after referring specifically to that passage, went on to say, as he had earlier done in relation to Williamson, that references to ‘a crime against the State’ and ‘conduct deserving punishment’ were not likely to be of great assistance to a jury in deciding whether, in any given case, the negligence that was proved gave rise to manslaughter.

As Priest JA has demonstrated, in King both Heydon and Bell JJ deprecated the use of expressions such as ‘merited criminal punishment’ in relation to CDCD. Justice Heydon criticised the use of that expression as being ‘risky’. In his Honour’s view it could lead to a series of like cases being treated differently, and different cases being treated alike.[12]
[12]To be fair, the same could be said of many ‘open textured’ rules that regularly confront judges and juries. Consider the debate surrounding the meaning of the term ‘dishonestly’ for the purposes of the Theft Act 1968 (UK). In R v Feely [1973] QB 530, it was held that this term was used in its ordinary sense, and required the jury to determine whether, according to the ‘current standards of ordinary, decent people’, the conduct of the accused should be stigmatised as such. See also R v Ghosh [1982] QB 1053, and David Lusty, ‘The meaning of dishonesty in Australia: rejection and resurrection of the discredited Ghosh test’ (2012) 36 Crim L J 282.

Those who agreed in the joint judgment in King[13] also questioned, by way of dicta, the desirability of directing juries dealing with CDCD that they must be satisfied that the driving ‘merited criminal punishment’.[14]
[13]Chief Justice French, Crennan and Kiefel JJ.
[14]The expression ‘merits criminal punishment’, in this context, has some of the hallmarks of what Professor Julius Stone described as a ‘category of illusory reference’. See generally his discussion of ‘circularity’ in seemingly logical reasoning in Legal System and Lawyers’ Reasonings, chapter 7, (Maitland Publications, 1964).

By instructing the jury in the present case that they had to be satisfied that the appellant’s driving ‘merited criminal punishment’, the trial judge, understandably, misdirected them. Nonetheless, we agree with Priest JA that this misdirection did not give rise to a substantial miscarriage of justice. For one thing, as we have said, it created an additional bar to conviction. For another, we consider that a conviction for CDCD was inevitable, no matter how the expression ‘gross negligence’ may have been explained to the jury. Thus far, we agree entirely with Priest JA.

Justice Priest has also concluded, however, that there are other reasons why this misdirection did not give rise to a substantial miscarriage of justice. He focuses, in that regard, upon the manner in which the trial judge charged the jury with regard to the lesser statutory alternatives to CDCD and NDCSI. He points out that the jury were told, in effect, not to worry about these alternatives as they were not really in issue in this trial. He concludes that no prejudice could have been done to the appellant’s case by invoking the requirement of ‘meriting criminal punishment’ in relation to CDCD, but omitting that expression from the statutory alternative of dangerous driving causing death (‘DDCD’).

It is at this point that we part company with his Honour. We respectfully disagree that the directions given regarding these statutory alternatives provide a discrete, alternative, and sufficient basis for the conclusion that the misdirection did not give rise to a substantial miscarriage of justice.

As we explain, the judge’s direction as to how the jury should approach the alternative charges was, in our view, erroneous. It cannot therefore be relied upon in support of a finding that there was no substantial miscarriage of justice. Importantly, it was the Crown’s foreshadowed reliance, in oral submissions before this Court, upon such a basis for the finding that there was no miscarriage of justice that led senior counsel for the appellant to seek to add ground four.

Ground four – the direction as to statutory alternatives

Ground four is as follows:

A substantial miscarriage of justice occurred as a result of the trial judge’s direction that the jury only consider the alternative charge of dangerous driving causing death after and if they are not satisfied that the accused is not guilty of culpable driving.

Senior counsel for the appellant submitted, in support of this ground, that the particular direction now impugned would have been understood by the jury as an instruction by his Honour as to the sequence they were to follow in their deliberations. A direction in that form was said to contravene well–established authority, including the decision of the High Court in Stanton v The Queen.[15]
[15](2003) 198 ALR 41 (‘Stanton’).

It was next submitted that the direction under challenge risked the jury forming the view that the lesser offence of DDCD, as an alternative to CDCD, was so insubstantial as to be overlooked, or even rejected out of hand. The jury might have regarded that alternative as not ‘meriting criminal punishment’, and so immediately put it to one side.

A variant of this submission was that the direction under challenge might have led the jury to conclude that the offence of CDCD was made out if they were satisfied that the appellant’s conduct deserved criminal punishment, and nothing more.

Put yet another way, it was submitted that merely because the appellant had pleaded guilty to the lesser offence of DDCD did not mean that the jury ought not, in the course of their deliberations, consider whether that alternative offence adequately met the needs of the case. That would be an approach legitimately open to the jury while at the same time they considered whether all of the elements of CDCD were made out.

Recapitulation of the Trial Judge’s directions regarding alternative verdicts

In order to consider the merits of ground four, it is necessary to set out some of the relevant passages from his Honour’s charge.

Before doing so, however, it is important to note the judge’s response to a question from the jury, asked before the commencement of the charge, as to the difference between CDCD, and the lesser offence of DDCD.

HIS HONOUR: I’ve got your question, Madam Foreman, and the answer to your question, I’ll read it so that everyone knows what it is, ‘Can we have a clear definition between culpable and dangerous driving, negligent versus dangerous driving?’ and the answer is I’ll be giving you quite explicit directions about that in my charge, which will be very soon, I think. I won’t answer it now. In essence, you don’t need to concern yourself with dangerous driving. I will be telling you what [is] culpable. That’s the question. Is it culpable or is it not? That’s what this case is about.[16]

[16]Transcript of proceedings, DPP v Bouch (County Court of Victoria, Judge Chettle, 22 February 2016) 154 (emphasis added) (‘Trial’).

The trial judge, in his charge, gave the jury a detailed direction as to the difference between these two offences. His Honour said:

HIS HONOUR: There is another offence known to the law of dangerous driving causing death, and that is, any time that there’s a charge of culpable driving alleged by the Crown, as there is here, Parliament prescribes that there must be an alternative offence left to the jury of dangerous driving causing death. It is a lesser offence than culpable driving, but it is a serious offence.
You have heard the accused man plead guilty to that when he was arraigned on culpable driving. The law also says that when someone is charged with negligent driving causing serious injury, which is the second charge on this indictment, an alternative charge of dangerous driving causing serious injury shall be left to the jury. Now again, in this trial, you heard the accused man plead guilty to that offence.
The issue in this trial is whether or not the driving of the accused man amounts to culpable driving, as I will define it for you. There are various ways upon which people can commit the offence of culpable driving. In this case, the way the Crown have alleged it, or the allegation is that it was gross negligence. …
He has admitted that his driving was dangerous. He disputes and says, ‘My driving wasn’t culpable’. There is a scale of offending that starts with dangerous driving, dangerous driving causing death, ascending to culpable driving.
Normally in these trials there is a lot of issue about what actually happened. Much evidence is heard, and a lot of contest occurs around the circumstances in which the death or injury occurred, and there might be a dispute as to whether somebody was speeding, who did what, that sort of a thing. But that hasn’t happened here.
There seems to be, effectively, no dispute that the general proposition - that the accused man came up behind the vehicle in which Mrs Rage was driving, was impatient to get past her, passed her on the left, and then when he was in front of them, slammed his brakes on in front of her, and she ran - she stopped, but the truck ran into the back of her.
That doesn’t seem to be disputed and there's no mechanical fact. We heard evidence from the mechanic, it’s not disputed, nothing contributed to the accident, there were no mechanical failures that caused it.
Ultimately, the causation is not in issue here either. You heard there is no dispute by pleading guilty. He admits that his conduct caused the death of Yahye and the serious injury to Yasmin, but says, that doesn’t amount to that level of being culpable.
So the one thing you have to determine is whether it is culpable. You don’t have to determine whether it’s dangerous, you don’t have – because he admits it is but I will tell you in a general sense what ‘dangerous’ is and I will tell you in great detail what ‘gross negligence’ is. We’re not talking about civil negligence ... Negligence is a failure to pay proper attention or proper care. We’re not dealing with civil negligence, we’re dealing with criminal negligence, and when I come to charge you I’ll tell you exactly what criminal negligence means. It’s such a departure from the standard of care that a normal person would expect, and it poses such a risk of danger or death that it warrants being called culpable, and that’s what you have to determine, whether in this case, and I’ll define that in much more detail and with more precision, but I’m giving you an overview now, whether or not the apparent uncontradicted facts constitute culpable driving or not.
They either do or they don’t. If the Crown satisfy you beyond reasonable doubt that the elements, the ingredients of culpable driving are made out, you’ll find them guilty, if they don’t satisfy you, you’ll find him not guilty, you won’t have to worry about the alternative count of dangerous driving, I will tell you what that is, but he’s pleaded guilty to that. He says ‘I’m guilty of that but I’m not guilty of that’. You follow? It is a question for you as to whether or not it does reach the standard that his driving is of such a poor quality, such gross negligence as to amount to culpable driving.
It is not uncommon for one offence to subsume others ... it’s a question of whether or not [the conduct] reaches the standard that defines the offence charged, so what we’re dealing about, it’s a fairly short and simple trial. The issue is whether or not it is culpable driving; it either is or it isn’t, and that is really your task, to answer that. I’m not saying it’s a simple task but it’s a simple issue and it’s a question for you to determine that.

When I give you my Charge, I will deal with concepts of criminal negligence in much more detail and I’ll deal with what the elements are of dangerous driving but you don’t need really to concern yourself with dangerous driving, it’s the culpable that you’ve got to concern yourself with, whether or not this is gross negligence warranting criminal punishment.[17]

[17]Trial 161–5 (emphasis added).

His Honour subsequently gave the jury a further direction regarding the difference between CDCD and DDCD:

HIS HONOUR: The law says, as I told you yesterday, that whenever the prosecution bring charges of culpable driving by criminal negligence and negligently causing serious injury, the two charges here, the jury must consider alternative charges of dangerous driving causing death as an alternative to dangerous driving, and dangerous driving causing serious injury, as an alternative to negligently causing serious injury. They have to both be left to the jury as alternative charges to the car.
In this case the accused man pleaded guilty to both those alternative charges when he was arraigned in the first place. You might recall he said not guilty to culpable driving but guilty to dangerous driving causing death, and similarly, not guilty to negligently causing serious but guilty of dangerous driving causing serious injury.
You only consider the alternative charges if you are not satisfied beyond reasonable doubt that the accused is guilty of culpable driving and negligently causing serious injury. That is why I say that is the issue for you in this trial. You ask yourself whether the evidence proves those charges beyond reasonable doubt. If it does you will find him guilty and you do not have to consider the alternative charges, but if you find him not guilty of culpable driving and negligently causing serious injury, because you are not satisfied his driving reaches the required standard, you will then have to consider the alternative verdicts of dangerous driving causing death and dangerous driving causing serious injury.[18]

[18]Ibid 225–6 (emphasis added).

The Crown submitted that these directions regarding CDCD and DDCD did not constitute instructions as to how the jury were to go about their deliberations. They should be understood instead as merely informing them about the sequence in which verdicts would be taken.

Senior counsel for the Crown accepted, in oral submissions, that:

[I]f it was clearly a direction to consider the case … in a particular order that would be wrong. But that’s not this trial. This trial there was no issue between the parties in relation to dangerous driving. So there was no other deliberation, realistically, before the jury other than ‘is this culpable driving.[19]
[19]Transcript of Proceedings, Bouch v DPP (Court of Appeal, Redlich, Weinberg, Whelan, Priest and Ferguson JJA, 17 March 2017) 12.

In substance, the Crown’s submission was that the jury would have understood the various directions given in relation to the alternative charges as going merely to the delivery of verdicts, rather than as ordering the sequence of their deliberations.
Common Law Position as to Jury Deliberations

In Stanton,[20] the majority stated:

Jurors are free to organise their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient.[21]

[20](2003) 198 ALR 41 (Gleeson CJ, McHugh and Hayne JJ).

[21]Ibid 49 [35].

Stanton was a case in which the only issue was whether the jury were satisfied of the accused’s intent to kill his wife. That solitary issue gave the case an unusual clarity in terms of the legal principles discussed. Their Honours said:

As a practical matter, if they were so satisfied [that he intended to kill his wife], [the jury] would find wilful murder, and if they were not so satisfied they would find manslaughter. ... There being, for practical purposes, only one issue, the answer to which (if agreed upon unanimously) would resolve the matter one way or the other, it is difficult to understand how any possibility of sequential reasoning on that issue could have arisen. In whatever order they examined the evidence, and considered the primary facts, when they came to decide whether the case was one of wilful murder or manslaughter, the jury would necessarily do that by reference to the single issue, of intent, on which the outcome depended.[22]

[22]Ibid 49–50 [37] (emphasis added).

The relevance of the factual and legal scenario in Stanton for the present appeal is self-evident. As in Stanton, the question for the jury in this case was not whether to find the appellant guilty, but rather guilty of which offence. As the appellant had already pleaded guilty, in the presence of the jury, to DDCD, it only remained for them to consider whether he was guilty of the more serious offence of CDCD. To all intents and purposes, that turned on the single issue of whether his act of sharply braking could be considered grossly negligent for the purposes of s 319. And, as in Stanton, the Crown submitted that it was difficult to see how this could have led to any sequential reasoning on the part of the jury. They simply needed to resolve that question, upon which the more serious offence depended, and convict accordingly.

It is worth noting that in Stanton, as in the present case, the trial judge gave directions that attempted to help the jury with their reasoning. He had responded to questions as to the difference between the offences there under consideration. He had, in particular, been asked by the jury what they should do if they were not unanimously of the view that the accused was guilty of one offence or the other.

In relation to this, the majority in Stanton said:

This was clearly a reference back to the judge’s direction in which he said: ‘If you are unanimously of the view that he’s not guilty of wilful murder, then you will consider murder ... If you are unanimously of the view that he’s not guilty of murder, then you will consider manslaughter’. The jurors were responding to that by asking a question as to their responsibilities if some of them were of the view that he was guilty of murder and others were not. They asked whether the former group would then be obliged to ‘move down’. That must have been a reference to the point of final decision; the finding of a verdict. Since the choice between wilful murder and manslaughter turned upon the resolution of the one issue, intent, the question cannot have been directed to a sequence of reasoning, as distinct from the formal act of finding a verdict.[23]

[23]Ibid 50 [39] (emphasis added).

The reasoning of the majority in this passage is, of course, relevant to the resolution of the present matter, which similarly turned on a single issue. However, in the present case, the directions given regarding the alternative verdict that might need to be considered would not have been understood by the jury as concerning merely the sequence of the verdicts to be brought in. Rather, from the language used, the jury were likely to have understood those directions as instructions as to the sequence that had to be followed with regard to their deliberations. Although both Stanton and the present matter were ‘one issue cases’, that should not obscure the probability that the repeated references by his Honour to the fact that they need not concern themselves with the lesser alternative would have led them to put that alternative entirely to one side in their deliberations, in the mistaken belief that they were obliged to do so.

The same issue as arose in Stanton had also arisen many years earlier in R v McCready.[24] There, the jury had acquitted the applicant and his co-accused of rape, but returned a verdict of guilty on an alternative charge of assault with intent to rape. One of the issues in the appeal concerned the question whether the trial judge had misdirected the jury in relation to the lesser alternative, upon discovering that they were not unanimous in relation to the more serious charge.
[24][1967] VR 325 (‘McCready’).

The relevant chronology of proceedings was summarised by the Court in McCready as follows:

After the jury had retired and been out for approximately two hours, it returned to court and asked the following question, namely: ‘Some of the gentlemen of the jury are not prepared to go on to the next charge after not agreeing on the more serious charge. What is the ruling of this Court?’
The learned judge then directed the jury, inter alia, as follows: ‘You are telling me, I understand, that some of your members do not want to proceed to consider the other charges on that list, and you ask me what you are to do. It is a very neat question, if I may say so. I cannot give you instructions as to how you go about looking at the various alternatives here. But I can indicate various ways in which it can be done, not as a matter of law, but just as a matter of twelve men talking something over. You do not have to start at the top and work down necessarily. You can start at the bottom of the list and work up if you want to.
...
If you find you cannot agree on any of them, see if you can agree on not guilty. See if you are unanimous on that, that is equally on the list. But, if you are looking for a lowest common denominator, that is perfectly legitimate. See what is the verdict on which you can all agree ...[25]

[25]Ibid 328–9 (emphasis added).

The Full Court held that this direction ‘was not in accordance with law and was calculated to distract the minds of the jury from proper consideration of the issue with which it was confronted at that stage of its deliberations.’[26] It observed that the lesser alternative of assault with intent to commit rape was authorised by s 425 (1) of the Crimes Act (as it was in 1967). That section was expressed in similar terms to its current equivalent.
[26]Ibid 329.

Of that provision the Full Court said:

The terms of that section, in our view, make a verdict of assault with intent to commit rape dependent upon the jury being not satisfied that the accused is guilty of the crime of rape. The question of his guilt of the alternative charge does not arise unless and until the jury is not satisfied of his guilt of rape, and whilst the jury is in a state of disagreement upon the latter, the accused’s guilt of the alternative crime remains irrelevant. In such circumstances, we are of the opinion that a direction of the kind given by the learned judge in answer to the jury’s question, so far from resolving their differences in accordance with law, would, we think, be calculated to deflect the minds of the jury from the relevant issue and capable of inducing ... a compromise verdict not justified under s 425 of the Act.[27]

[27]Ibid (emphasis added).

The Full Court relied on the fact that, on the evidence, there was no dispute as to whether an assault had taken place. This was relevant in that, as in the present case, the single issue was whether the jury would return a verdict of guilty on the more serious charge of rape (given that the lesser offence of indecent assault—not, however, assault with intent to commit rape) was plainly made out. The Full Court quashed the conviction and substituted for the verdict of the jury a verdict of guilty of indecent assault.

In Simms v The Queen,[28] the Western Australian Court of Criminal Appeal applied Stanton. The appellant was facing three separate charges: attempted murder; causing grievous bodily harm with intent to maim, disfigure or do grievous bodily harm; and causing grievous bodily harm. It was contended on appeal that the trial judge had erred in directing the jury to consider the second charge only after reaching a verdict of not guilty on the charge of attempted murder and, similarly, to consider the lesser alternative (the charge of causing grievous bodily harm) only after reaching a verdict of not guilty on the second charge.
[28](2004) 148 A Crim R 433 (‘Simms’).

Justice Jenkins, with whom Murray and Le Miere JJ agreed, made the following observations about the application of Stanton to the facts in Simms:

1.It is impermissible for a trial judge to direct members of a jury that they must consider alternative charges in any particular order as jurors are free to organise their deliberations in whatever manner appears to them to be convenient.
2.When determining whether a trial judge’s directions have infringed this prohibition the question is whether the trial judge might reasonably have been understood to convey anything to the contrary, or whether he or she was merely informing them of the sequence in which, at the final point of decision, they were to deal with the possible verdicts available to them.
3.In determining the answer to this question, an individual direction should not be construed on its own but must be considered in light of the issues that have emerged at the trial, the whole of the trial judge’s directions and any questions from the jury.[29]

[29]Ibid 442 [50].

Justice Jenkins added that, as she understood Stanton, ‘the question of a verdict being taken on the alternative charge did not arise unless and until the jury was not satisfied of Stanton’s guilt of wilful murder, and whilst the jury was in a state of disagreement upon the latter, his guilt of the alternative crime remained irrelevant.’[30]
[30]Ibid 442–3 [52]. Justice Murray further observed that the ruling in Stanton may require that the trial judge give different directions in different circumstances and that ‘[c]are should be taken to ensure that any directions given do not water down or have the tendency to reverse the directions of the trial judge about the onus and burden of proof.’: 435 [10]. This is a particular danger where the jury are directed that the only basis upon which a verdict of guilty for the lesser alternative may be returned is where the jury is unanimously persuaded that the accused is not guilty of the more serious offence. See, for example, Hellings v The Queen [2003] WASCA 208 [19].

LLW v The Queen[31] was an appeal before this Court. It too concerned jury directions regarding alternative verdicts. At trial, the jury had found the accused guilty of one count of rape, but not guilty on three others (there having been four alleged incidents of sexual offending). Significantly, the guilty verdict:

was only arrived at after the jury had previously informed the judge that they were unanimous about the alternative sexual penetration count charged in connection with that incident, but were not unanimous about the principal count of rape.[32]

[31](2012) 35 VR 372 (‘LLW’).

[32]Ibid 375 [6] (Maxwell P, Weinberg JA and Williams AJA) (emphasis in original).

The verdict had been reached after three days of deliberation. The jury had repeatedly asked about the alternative counts, and how they should deal with them. This Court said:

The legal requirement is clear. The jury may not return a verdict on an alternative count unless and until they have first acquitted the accused on the principal count. This rule is, however, concerned only with the order in which verdicts are returned. It says nothing about the process of deliberation by which the jury may arrive at their verdicts. Thus, it would be an error for a judge to direct a jury that they must refrain from considering an alternative count until they had completed their consideration of the principal count.[33]

[33]Ibid 375 [5] (citations omitted).

That formulation accords with Stanton. The Court in LLW also commented upon McCready and sought to reconcile it with Stanton. To this end, the Court said:

Read literally, what the Full Court said [in McCready] might have been thought to prohibit the jury from giving any consideration to the question of the accused’s guilt of the alternative count ‘unless and until’ they had reached agreement that the accused was not guilty of the principal count. The High Court decision in Stanton makes clear, however, that there is no such constraint on the jury’s processes of deliberation. The only constraint on a jury considering alternative counts relates to the order in which their verdicts are delivered. The jury cannot deliver a verdict on an alternative count unless they have first acquitted the accused of the principal count.[34]

[34]Ibid 376 [11] (citations omitted; emphasis in original).

The Court in LLW concluded that nothing said in Stanton should be understood as interfering with the time-honoured principle that ‘a jury cannot find an accused guilty of an alternative count unless they have reached a unanimous verdict of not guilty on the principal count.’[35] Indeed, this lay behind the Court’s decision in LLW to allow the appeal, since the jury in that trial had attempted to do exactly that, namely, find the appellant guilty of the alternative count of sexual penetration without having reached a unanimous verdict as to the primary count of rape.
[35]Ibid 377 [15].

We turn now to consider three recent decisions of this Court dealing with Stanton and directions as to alternative charges.

In Medici v The Queen[36] the appellant was convicted on one count of trafficking in methylamphetamine. That was the principal charge levelled against him, though there were a host of lesser alternatives available. Justice Harper, having referred to Stanton, said:

Just as a judge must direct a jury that they cannot come to a verdict on an alternative count unless they have first reached the (unanimous) conclusion that the accused is not guilty of the principal charge — and that, if he or she is (unanimously) found guilty of that charge, there will be no call for any verdict on the alternative or alternatives — so a judge must not dictate to the jury a sequence of deliberation. In other words, the jury may consider the charges, even when they are alternatives, in whatever order they please. It is only when they come to decisions about verdicts that they must, before they reach a conclusion on any alternative charge, decide whether the accused is guilty or not guilty of the principal charge. That is the first of the verdicts about which they will be asked after they inform the court that they have reached a verdict or verdicts; and if the answer is guilty, no further verdict on any alternative charge will be sought. Only if the verdict is not guilty of the principal charge will the jury be asked to give a verdict on an alternative charge.
The freedom which jurors enjoy to organise their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient, was emphasised by both the majority and the minority per Gummow and Callinan JJ in Stanton. That freedom is a concomitant of the pivotal position which the jury occupies in any trial by jury. The members of the jury are the sole judges of the facts. As such, their autonomy must be respected. Were this not so, the jury might reason to a verdict to which, without the intervention of the judge, they might not have otherwise come. And it is not an answer to say that, uninstructed, the jury may have reasoned in exactly the same way to exactly the same conclusion if they might, uninstructed, have reasoned in a different way to a different conclusion.[37]

[36](2013) 39 VR 350 (citations omitted).

[37]Ibid 352–3 [10]–[11] (emphasis in original). See also Priest JA’s analysis at 360–1 [39]–[41], and his Honour’s explanation of how McCready could be reconciled with Stanton, and his Honour’s explanation of why there was no substantial miscarriage of justice in Medici.

In Smith v The Queen,[38] the issue was whether the trial judge had erred by impermissibly dictating the sequence of the jury’s deliberations. Justice Priest, with whom Harper and Coghlan JJA agreed, concluded that, although a direction which purports to instruct a jury as to sequence of deliberations is contrary to law, there would be no difficulty with a direction that dictates the sequence of verdicts. The mere fact that the trial judge had told the jury that they only need consider the lesser alternatives if they first acquitted of the more serious charge did not constrain them to consider the verdicts in any particular order. Accordingly, the general ‘rule’ in Stanton was not infringed.
[38](2013) 39 VR 336.

In Vo v The Queen,[39] the issue was, once again, whether the trial judge had impermissibly dictated the sequence of the jury’s deliberations. It was held that the passages in the charge under challenge when viewed in context, showed that the judge had not transgressed. A jury could legitimately be told that they need only consider lesser alternatives if they first acquitted on more serious charges. A direction along those lines, without more, did not amount to the dictation of a sequence of deliberation, or a direction to the jury that they organise their deliberations in a particular way. Rather, in context, what was said to the jury would have been understood by them merely as a direction about the sequence in which verdicts would be taken. The use of the word ‘consider’, in context in that case, was referable to the process of taking the verdicts, not the order in which the jury should deliberate.
[39](2013) 39 VR 543.

Subject to what follows below, the principles set out above inform our appraisal of whether the judge’s directions regarding the alternative of DDCD in the present case transgressed by instructing the jury as to how they should conduct their deliberations, or whether they would be understood as going merely to the order of taking the verdicts.

Relevant Statutory Framework – the effect of s 422A

It is necessary to set out the relevant legislative provision governing alternative verdicts on charges of CDCD. Section 422A(1) of the Crimes Act provides:

If on the trial of a person charged with an offence against section 318 (culpable driving causing death) the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that he or she is guilty of an offence against section 319(1) (dangerous driving causing death), the jury may acquit the accused of the offence charged and find him or her guilty of the offence against section 319(1) and he or she is liable to punishment accordingly.[40]

[40]Emphasis added.

It is important to note that, not only this provision, but all other surrounding statutory provisions dealing with alternative offences contained in Part III div 19—from s 421 through to s 435—are expressed in similar terms. To hold that s 422A(1) should be construed as having abrogated the general rule formulated in Stanton, despite its well-established pedigree, would imply, by extension, that these other provisions also operate in that same way.

These alternative offence provisions are used regularly by juries in this State. Basically, this occurs without any confusion as to whether the legislature intended, by enacting them, to order the sequence of their deliberations as distinct from the sequence of the delivery of their verdicts.

The difficulty that has arisen in the present case does not have its source in s 422A, which simply allows the jury to consider the alternative offence of DDCD alongside and together with the primary, and more serious, offence of CDCD. If Parliament had intended s 422A, and the provisions that surround it, to abolish the general rule in Stanton, it might have been expected to say so in clear terms.

The same can be said of s 239 of the Criminal Procedure Act 2009. That section provides as follows:

Alternative verdicts on charges other than treason or murder
(1)On a trial on indictment for an offence other than treason or murder, if the jury finds the accused not guilty of the offence charged but the allegations in the indictment amount to or include, whether expressly or impliedly, an allegation of another offence that is within the jurisdiction of the court, the jury may find the accused guilty of that other offence.
(2)For the purposes of subsection (1), an allegation of an offence includes an allegation of an attempt to commit the offence.

Once again, for the reasons set out above in relation to s 422A, s 239 should not be understood as permitting a trial judge to direct a jury as to the order in which they must deliberate when dealing with lesser included offences.

The significance of King v The Queen[41] as regards s 422A

[41](2012) 245 CLR 588 (‘King’).

Both parties in their written submissions relied, in different ways, on King. Two passages from the reasoning of the majority in that case would seem to be of particular significance so far as the present appeal is concerned.

The first, which follows directly on from the High Court’s consideration of s 422A(1), is contained within paragraph 12 of that judgment:

As a matter of construction, the power to deliver an alternative verdict of guilty of the offence under s 319 is conditioned upon the jury not being satisfied that the accused is guilty of the offence charged under s 318. It is only ‘if’ the jury are not so satisfied that their attention is directed to the lesser offence. Consideration of the s 318 offence may therefore be seen as a condition precedent to consideration of the offence under s 319. The word ‘may’ in s 422A(1) is in the nature of a permission, which may be acted upon, when the jury is satisfied that the accused is guilty of the offence under s 319. That word governs the composite term ‘acquit … and find him or her guilty of the offence against section 319’. There is no other source of power conferred by the Crimes Act to return a verdict for a lesser offence where culpable driving causing death is charged.[42]

[42]Ibid 595 (citations omitted).

The second, paragraph 56, again takes up the issue of how to construe s 422A(1). Their Honours said:

The Crown sought to invoke the proviso submitting, consistently with the reasons of the Court of Appeal, that the findings of fact made and the conclusion reached by the jury as to the more serious offences under s 318 meant that any misdirection as to the lesser offences under s 319 could not have affected the outcome in this case. That submission directed attention to the provisions of s 422A of the Crimes Act. That section conditions the jury’s power to return a verdict of guilty of an offence against s 319, in relation to a person charged with an offence against s 318, upon their want of satisfaction that the person is guilty of the offence against s 318. … Had it been necessary to consider the effect of that limitation on the application of the proviso, it would also have been necessary to have regard to the decisions of this Court in Gilbert v The Queen, Gillard v The Queen and R v Nguyen. There is, however, no need to consider either the effect of the limitation or its interaction with those decisions in order to dispose of this appeal.[43]

[43]Ibid 611–12 [56] (citations omitted).

In the first of these passages, consideration of the s 318 offence (CDCD) is said to be ‘a condition precedent to consideration of the offence under s 319’ (DDCD). However, the balance of paragraph 12, when read together with paragraph 56, makes it tolerably clear that the High Court was not suggesting that s 422A, upon its proper construction, had altered the common law position that it is a matter for the jury as to how they go about or sequence their deliberations.

As previously indicated, it would require strong, if not unmistakeable, language before one concluded that the legislature intended to confer upon trial judges the power to direct the sequence in which juries should go about their deliberations. Had the majority in King considered that s 422A should be so construed, we would have expected some reference in their judgment to Stanton, and to the common law rule that was now being said to have been legislatively abrogated.

Was the trial judge’s direction to the jury regarding DDCD in error?

We turn now to why we consider that his Honour’s direction regarding DDCD was erroneous. Justice Priest is of the view that the jury would have understood that the various directions given regarding alternative verdicts related only to the process that they should follow when delivering their verdicts, and not to the manner in which they should go about their deliberations. We are unable to agree. We are also unable to agree with his Honour that merely because the appellant had pleaded guilty, in the presence of the jury, to DDCD, that lesser alternative could assume no relevance whatever in their deliberations until such time, if at all, they had unanimously determined that the respondent was not guilty of CDCD.

In our opinion, the jury were entitled, if they wished to do so, to take into account the elements of the lesser alternative (DDCD), as well as the appellant’s acknowledgement of guilt of that lesser offence, when considering what finding they should make with regard to the more serious offence. Their right to do so was exactly the same as it would have been had the appellant pleaded not guilty, and the judge merely directed the jury as to the lesser alternative that was available.

It may be that the particular direction given regarding DDCD took the form that it did because, in light of the plea of guilty, the trial judge approached the lesser charge as a foregone conclusion. Perhaps his Honour, having noted this a number of times during the charge, could not see how it could make any difference to the jury’s deliberations on CDCD. However, for the purpose of the jury’s deliberations, it did not matter whether there had already been a plea of guilty to the lesser charge. Under the general rule in Stanton, a jury is always entitled to commence its deliberations by considering not just the primary offence, but also a lesser alternative, should it wish to do so. It is then entitled to consider how, if at all, the deliberations on that lesser charge may bear upon the verdict in respect of the more serious charge.

It is also possible that the trial judge felt constrained by paragraph 12 of King, set out above, to conclude that s 422A had abrogated Stanton, in Victoria.

A literal reading of that paragraph might, as we have said, lead one to conclude that the majority intended that result, unlikely though that might seem. The words ‘attention’ and ‘consideration’, in paragraph 12, can be read as suggestive of deliberation, rather than verdict. However, as we have said, the paragraph needs to be read in conjunction with paragraph 56, also set out above. In that passage, the majority, by referring to various authorities that reinforce Stanton seem to us to reaffirm the common law position, and the interpretation of s 422A that we have advanced. That is, that ‘the jury has no power to return the alternative verdict [against s 319] unless first satisfied that the person is not guilty of the offence against s 318.’ The implication is again clear: the trial judge may—indeed must—direct the sequence of the jury’s verdicts but not the sequence of their deliberations. Nor should the trial judge say anything to the jury that may be taken as foreclosing or precluding the consideration of lesser alternative offences as part of their deliberations, even where there has been a plea of guilty entered in relation to one or more of them.

Although we would grant leave to amend the grounds of appeal by adding ground four, we would dismiss the appeal. In our opinion, no jury, acting reasonably, could have failed to be satisfied that the appellant’s driving created a high risk that death or serious injury would result. As we have concluded that a

conviction on CDCD was inevitable (irrespective of any direction that might have been given as to DDCD and regardless of the sequence in which the jury reasoned) there was no substantial miscarriage of justice.

WHELAN JA

FERGUSON JA:

We have read in draft the reasons for judgment of Priest JA and of Redlich and Weinberg JJA. We agree for the reasons they have given that juries should not be directed on a charge of culpable driving that they must be satisfied that the driving merits criminal punishment. We also agree that there was no miscarriage of justice in this case because conviction on the culpable driving charge was inevitable.

We agree with Redlich and Weinberg JJA that juries should from now on be directed in accordance with the direction articulated by Charles JA in R vDe’Zilwa,[44] save that there should be no reference to meriting criminal punishment. That is, the judge should direct the jury that they are required to find that the driving of the accused involved a great falling short of the standard of care which a reasonable person would have exercised in the circumstances and involved a high risk that death or serious injury would follow. A reference to and comparison with civil negligence is likely to be helpful to the jury.
[44](2002) 5 VR 408, 423 [46] (Charles JA with whom Ormiston JA and O’Bryan AJA agreed).

To the extent that Priest JA’s analysis of defence counsel’s final address to the jury involves criticism of counsel, we do not agree with it. We do not know what counsel’s instructions were. Given the evidence, and the admitted facts, in our opinion there was little that counsel could say to persuade the jury to acquit. What little could be said was said, in our view.

That leaves proposed ground 4. This proposed ground concerns the principle

addressed by the High Court in Stanton.[45] The principle is that, while the jury must be directed as to the sequence of verdicts where there is a lesser alternative charge, they must not be directed as to the sequence of their deliberations. The distinction between the required direction and an impermissible direction can be a fine one. The nuances of interpretation in that regard, particularly in relation to the use of the expression ‘consider’, can be very fine.[46] The principle itself has been subject to criticism for these and other reasons.[47]

[45](2003) 198 ALR 41.

[46]Simms v The Queen (2004) 148 A Crim R 344, 447–8 [77]–[79]; Medici v The Queen (2013) 39 VR 350, 360-1 [41]; Smith v The Queen (2013) 39 VR 336, 344 [35]; Vo v The Queen (2013) 39 VR 543, 549-51 [29]–[36]. The majority’s use of the term ‘consideration’ in King v The Queen (2012) 245 CLR 588, 595 [12]–[13] is also significant in this context.

[47]See King v The Queen (2012) 245 CLR 588, 614–15 [65]–[67] (Heydon J); Criminal Law Review, Department of Justice and Regulation, Jury Directions: A Jury-Centric Approach Part 2 (February 2017) 26–7.

The critical consideration for us is that, as a practical matter, there was only one issue upon which this jury had to deliberate. That issue was whether the admittedly dangerous driving constituted the level of negligence required for the offence of culpable driving. Stanton itself is also said to have been a ‘single issue’[48] case but there was no guilty plea in Stanton, the question of intent was said to be the only ‘substantial issue of fact’[49], and there were four possible verdicts there which were ‘technically available’[50] and two ‘realistically open’[51]. This trial was as stark an instance of a ‘single issue’ case as one could envisage; more so than Stanton.
[48]Stanton (2003) 198 ALR 41, 49 [37].
[49]Ibid 42 [2].
[50]Ibid 43 [4].
[51]Ibid.

In this case there was no practical risk that what the judge said would act as a fetter or restraint upon the sequence of the jury’s deliberations because there was only one matter upon which they had to deliberate. The concern at which the relevant principle is directed simply did not exist as a practical issue in this case.

Like Priest JA, we would refuse leave to introduce proposed ground 4.

For these reasons, we would dismiss the appeal.

PRIEST JA:

Introduction

An indictment filed in the County Court charged the appellant with culpable driving causing the death — by gross negligence[52] — of Yahye Hashi (charge 1) and negligently causing serious injury[53] to Yasmin Hashi (charge 2).
[52]Crimes Act 1958, s 318(2)(b). The maximum penalty is 20 years’ imprisonment.
[53]Crimes Act 1958, s 24. The maximum penalty is 10 years’ imprisonment.

When arraigned before a jury panel on 22 February 2016, the appellant pleaded not guilty to the charge of culpable driving and the charge of negligently causing serious injury, but pleaded guilty respectively to the statutory alternatives[54] of dangerous driving causing death[55] and dangerous driving causing serious injury.[56]
[54]See Crimes Act 1958, s 422A.
[55]Crimes Act 1958, s 319(1). The maximum penalty is 10 years’ imprisonment.
[56]Crimes Act 1958, s 319(1A). The maximum penalty is five years’ imprisonment.

Following what was, by modern standards, a short trial, on 24 February 2016 the jury found the appellant guilty of the principal charge of culpable driving causing death and of the charge of negligently causing serious injury.[57]

[57]On 1 March 2016, the trial judge imposed a total effective sentence of eight (8) years and six (6) months’ imprisonment, and fixed a non-parole period of six (6) years. For culpable driving, charge 1, the judge imposed a sentence of seven (7) years and six (6) months’ imprisonment, and for negligently causing serious injury, charge 2, two (2) years and six (6) months’ imprisonment. Twelve (12) months of the sentence on charge 2 was ordered to be served cumulatively with the sentence on charge 1. The judge also cancelled the appellant’s driver licence and disqualified him for 10 years.

Pursuant to leave granted on 28 November 2016,[58] the appellant appealed against those convictions on the following ground:[59]

The trial judge’s directions to the jury did not adequately discriminate between the offences of culpable driving by gross criminal negligence and dangerous driving causing death.

[58]Bouch v The Queen [2016] VSCA 298 (Whelan JA). Leave to appeal against sentence was refused. No election against that refusal was filed.

[59]Another ground, which asserted that the trial judge ‘erred in excluding evidence regarding the wearing of seatbelts by the deceased and the victim’, was abandoned before the hearing of the appeal.

Upon the hearing of the appeal, counsel for the appellant sought leave to substitute another ground, ground 3, for the existing ground. Counsel for the respondent did not oppose that course. It is proper to grant leave. Substituted ground 3 reads as follows:

A substantial miscarriage of justice occurred as a result of the trial judge’s direction that in order to find the appellant guilty of culpable driving and negligently causing serious injury it was necessary that the jury be satisfied that the appellant’s conduct merited criminal punishment.

Counsel also sought leave in the running to add a further new ground, ground 4. I would refuse leave. It would be inutile to grant it. As formulated, however, proposed ground 4 was in the following terms:

A substantial miscarriage of justice occurred as a result of the trial judge’s directions that the jury ‘only consider’ the lesser alternative charges after, and if, they found the appellant not guilty on the primary charges.

In my opinion, the appeal should be dismissed. My reasons follow.

Factual background

It is necessary to say a little about the facts, most (if not all) of which were not in dispute.

On 27 May 2014, at approximately 3.45 pm, a fatal collision involving three vehicles occurred on Hopkins Road, Truganina.

The appellant, aged 46 years, was driving a black Audi sedan south on Hopkins Road. Ms Anisa Rage, aged 41 years, was driving a blue Toyota Avensis wagon, also south, on Hopkins Road. There were five passengers in the Toyota, including her sister, and her four children: Bilal Hashi (aged 11 years); Yahye Hashi (aged 10 years); Yasmin Hashi (aged seven years); and Ibrahim Hashi (aged four years). A third vehicle, a white Iveco Stralis 425 heavy rigid tipper truck, driven by Mr Brett Kidd, was following both vehicles.

Ms Rage was driving the three older children home from school. The Toyota had three rows of seats, two seats being situated in the front, three seats in the middle and two seats in the rear. Ms Rage was in the driver’s seat and her sister was in the front passenger seat. Ibrahim was in a baby seat situated in the middle row of seats on the passenger side; Yasmin was in the rear row of seats on the driver’s side; Yahye sat in the middle of the second row of seats; and Bilal sat in the middle row behind the driver’s seat.

Shortly before the collision, Ms Rage was driving the Toyota south on Hopkins Road, somewhat below the 70 kilometre per hour speed limit. The appellant drove up to the rear of Ms Rage’s vehicle at a fast speed. He began tailgating Ms Rage’s vehicle, flashing his lights and blowing his horn, aware that the Iveco tipper truck was travelling behind his and Ms Rage’s vehicles.

At the intersection of Hopkins Road and Greigs Road, the appellant used a slip lane to overtake the Toyota — which was travelling at about 60 kilometres per hour — on its passenger side. The appellant accelerated his vehicle to a speed of more than 70 kilometres per hour, passed the Toyota and then cut back in front of it. The appellant was seen in his rear vision mirror apparently to be yelling at Ms Rage.[60] The appellant apparently then suddenly, deliberately and without justification, jammed on the brakes of his car, causing it to slow dramatically and come to a complete stop.
[60]There was also evidence excluded from the trial that the appellant raised his hands towards his head, then raised the middle finger on each of his hands towards Ms Rage. The trial judge excluded this piece of evidence on the basis that it was not relevant to any issue in the trial (or, alternatively, on the basis that its probative value was outweighed by the risk of unfair prejudice), although he referred to it in his reasons for sentence. With respect, I regard the evidence as being relevant to the issue of gross negligence. I note that both Brett Kidd and Anisa Rage referred to the appellant’s gestures in their statements to police (which formed part of the depositions), but that in his record of interview the appellant denied that he gestured in the manner alleged. Given that it was not before the jury, however, it cannot influence my conclusions at [142].

Ms Rage was able to react immediately and to stop her vehicle just short of colliding with the rear of the appellant’s car. Mr Kidd had observed the appellant’s tailgating and overtaking manoeuvres. When the appellant suddenly stopped his vehicle Mr Kidd immediately applied the brakes of his truck. The automatic braking system of his truck could be heard to be operating properly, but the truck simply was unable to stop before it collided with the rear of Ms Rage’s stationary Toyota. The collision occurred perhaps one, two or three seconds after Ms Rage had brought her vehicle to a stop.

As a result of the collision, the Toyota wagon was pushed into the rear of the appellant’s car. The rear section of the Toyota was crushed by the truck. Yahye sustained very serious injuries and Yasmin suffered a broken arm.[61] Others in the Toyota sustained minor injuries. Yahye was airlifted to the Royal Children’s Hospital where, on 1 June 2014, after surgical intervention and having spent five days in intensive care, he died from massive head injuries sustained in the collision. Yasmin spent three days in hospital before her release on 30 May 2014.
[61]It was not disputed that this was a serious injury.

When interviewed by the police the next day the appellant lied about the circumstances of the collision; in particular, he denied braking heavily.

As I earlier mentioned, few (if any) of the circumstances of the collision were disputed. Thus, at trial the prosecution tendered a document, Admissions of Fact (Exhibit D), which contained a number of admissions by the appellant, expressed in the following terms:

I, Ian Bruce Bouch, have been advised by my legal practitioner to admit the following facts pursuant to section 184 of the Evidence Act2008:
a.That on the day of the collision I was driving a black 1994 Audi 80 sedan registration number JI001 (the Audi);
b.Shortly prior to the collision, I had been driving the Audi in front of a white 2007 Iveco Stralis 425 model heavy rigid truck registration WOL516, driven by witness KIDD;
c.At this time, I was driving directly behind a blue Toyota Avensis wagon, registration number UEN173, driven by witness Anisa RAGE;
d.The three vehicles were travelling south along Hopkins Road, Truganina;
e.I was driving close to the Toyota;
f.I was frustrated that the Toyota was driving under the speed limit;
g.I flashed my lights a number of times before using a slip lane on the left hand side of the road to overtake the Toyota;
h.When overtaking the Toyota my vehicle exceeded the posted speed limit of 70kmph;
i.Shortly after overtaking the Toyota, I intentionally braked heavily causing my vehicle to slow significantly;
j.At the time that I braked heavily I knew that the Toyota was directly behind me and that the Iveco Truck was behind the Toyota;
k.My braking caused the Toyota and in turn the Iveco Truck to brake heavily;
l.I had no lawful justification for intentionally braking heavily the way that I did. In other words this action was unjustifiable;
m.On the 28^th of May 2014 I took part in a record of interview with the police. During that interview I told the police that on the day of the collision:
i.I was travelling around Hopkins Road;
ii.a truck was right up my bum and the lady in front was driving terribly slow; and
iii.I pulled out and passed her on the left and in doing so exceeded 70kmph.

I pause to observe that, in light of the admissions made by the appellant, it is difficult to understand how it could realistically ever have been thought that conviction for culpable driving by gross negligence was anything other than inevitable.

Did the judge fail to direct adequately on the elements of the offences?
The appellant’s arguments

Counsel for the appellant argued that it was a misdirection for the judge, when instructing on the kind of negligence required to found a conviction for culpable driving,[62] to tell the jury that they must be satisfied that the appellant’s conduct merited criminal punishment. As I followed counsel’s submissions, it was contended that the trial judge’s directions to the jury did not adequately discriminate between the offences of culpable driving by gross criminal negligence and negligently causing serious injury on the one hand, and the statutory alternatives of dangerous driving causing death and dangerous driving causing serious injury on the other, so that the directions were apt to cause ‘confusion’ between the elements of the primary offences and those of the alternatives (this submission being characterised during argument as the ‘conventional complaint’). It was submitted that there were two principal problems flowing from the directions: first, the directions ‘supplanted the statutory language’; and, secondly, the directions ‘distorted the relationship’ between the principal charges and the statutory alternatives. A further complaint emerged in the course of oral argument to the effect that the judge’s directions were apt improperly to fetter the manner in which the jury ordered their deliberations (hence the application to add proposed ground 4).
[62]And also for negligently causing serious injury.

Pivotal to the appellant’s case is the contention that the directions with respect to culpable driving causing death by gross negligence formulated in De’Zilwa[63] — in particular, the requirement that the negligent act causing death ‘merited criminal punishment’[64] — ought not be followed. As will become clear, in my opinion, that part of the De’Zilwa formulation should no longer form part of a direction to a jury with respect to the elements of an offence under s 318(2)(b) of the Crimes Act 1958. But as will also become clear, on the assumption that justice miscarried as a result of the judge’s adherence to the De’Zilwa formulation, no substantial miscarriage of justice has been occasioned.
[63]R v De’Zilwa (2002) 5 VR 408 (‘De’Zilwa’).
[64]See [119] below.

The elements of culpable driving causing death by gross negligence prior to De’Zilwa

Turning to culpable driving causing death by gross negligence, any analysis of the elements of the offence must of course commence with the statutory text. Section 318(1) of the Crimes Act 1958 provides that any person ’who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence’. Several forms of culpability are set out in s 318(2). Subsection 318(2)(b) provides:

(2)For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle —
…
(b)negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; …

The manner in which a jury should be directed with respect to the offence created by s 318(2)(b) first seems to have arisen for consideration by an appellate court in this State in Horvath.[65] It was made clear that in directing a jury, a trial judge should confine himself (or herself) to the terms of the legislation:[66]

Before leaving this case, we would add that the learned Solicitor-General raised for consideration the question of the form of direction which should be given to a jury faced, as this jury was, with a charge of culpable driving, the form of culpability relied on being that referred to in s 318(2)(b) of the Crimes Act 1958. We are of the view that the proper course for the trial judge to adopt is to confine himself to the very terms of the relevant legislation to draw attention to the requirement that the jury must be satisfied that there has been a failure on the part of the accused to observe the prescribed standard of care and that the failure must not only be unjustified but must be to a gross degree. The legislature has in words prescribed the degree of departure from the standard of care required to constitute the offence, and to do more than emphasize that the departure from the stated standard of care must be gross is only likely to obscure the nature of the task before the jury. In particular, we would say that, in our view, as contended by the learned Solicitor-General, recklessness, whilst it may be of evidentiary value, is not an ingredient of the form of culpability referred to in s 318(2)(b), and that it is both unnecessary and undesirable in such a case that a charge should be complicated by references to the standard, in whatever terms it is properly expressed, required to establish manslaughter by criminal negligence.

[65]R v Horvath [1972] VR 533 (Winneke CJ, Little and Stephen JJ) (‘Horvath’).

[66]Ibid 539 (emphasis added).

Horvath was decided in December 1971. Less than a year later, in November 1972, the subject of the proper directions for an offence under s 318(2)(b) again arose for consideration. In Lucas,[67] Newton J and Norris AJ observed:[68]
[67]R v Lucas [1973] VR 693 (Smith ACJ, Newton J and Norris AJ) (‘Lucas’).
[68]Ibid 700–1.

As earlier indicated, the charge was laid under s 318(1) and s 318(2)(b) of the Crimes Act 1958. The words in s 318(2)(b) ‘in all the circumstances of the case’ are of great importance. They make it clear that in fixing the standard of care which a reasonable man would have observed the particular situation or predicament of the accused person at the time of the alleged offence is very relevant, so that it is necessary to weigh any advantages which the accused’s manner of driving was likely to bring to himself or others against the risks to life or limb which it created. Indeed, this is a well-recognized concept in the general law of negligence, albeit but sparsely illustrated by reported decisions. …
… We doubt whether the word ‘unjustifiably’ in s 318(2)(b), which must mean ‘without due cause’, adds anything to the meaning which s 318(2)(b) would otherwise have, because in deciding whether a driver had failed to a gross degree to observe the standard of care which a reasonable man would have observed in all circumstances of the case, the question of whether or to what extent he had due cause for his acts or omissions in question would in any event be relevant. The word ‘unjustifiably’ in s 318(2)(a) appears to us to have much greater importance.

But they added:[69]

We may add that, in our opinion, the word ‘gross’ in s 318(2)(b) has the meaning of ‘glaring, flagrant, monstrous’: see the Shorter Oxford English Dictionary. In the present case counsel for the applicant submitted to the learned judge that he ought to be allowed in his final address to the jury to illustrate the meaning of the word ‘gross’ by reference to, and comparison with, the elements of the tort of civil negligence. His Honour rejected this submission, stating that in his view any such reference and comparison would be contrary to what was said in R v Horvath, supra. But in fact there is nothing in the judgment in R v Horvath which either expressly or by implication prohibits a reference to, and comparison with, civil negligence for the purpose of explaining the meaning of s 318(2)(b) to a jury. In the present case, in our opinion, such a reference and comparison would have been both helpful to the jury and fair to the applicant.

[69]Ibid 701 (emphasis added).

Despite what was said in Lucas, however, the Full Court later suggested in Stephenson[70] that resort to the synonyms ‘glaring, flagrant, monstrous’ generally is unnecessary and may be unwise. Indeed, it was again emphasised that a trial judge should confine himself (or herself) to the statutory text. The Court said:[71]

It was suggested that a trial Judge who was concerned to direct a jury upon the meaning of s 318(2)(b) of the Crimes Act should in view of what was said in the joint judgment of Newton, J, and Norris, AJ, (as he then was) in R v Lucas, [1973] VR 693, at p 701 tell the jury that ‘gross’ means ‘glaring, flagrant, monstrous’. But a proper understanding of the joint judgment does not require such a direction to be given.
In R v Horvath, [1972] VR 533, at p 539 this Court prescribed in clear terms how a trial judge should direct a jury in such a case. The Court there said: ‘Before leaving this case, we would add that the learned Solicitor-General raised for consideration the question of the form of direction which should be given to a jury faced, as this jury was, with a charge of culpable driving, the form of culpability relied on being that referred to in s 318(2)(b) of the Crimes Act 1958. We are of the view that the proper course for the trial Judge to adopt is to confine himself to the very terms of the relevant legislation to draw attention to the requirements that the jury must be satisfied that there has been a failure on the part of the accused to observe the prescribed standard of care and that the failure must not only be unjustified but must be to a gross degree. The legislature has in words prescribed the degree of departure from the standard of care required to constitute the offence, and to do more than emphasize that the departure from the stated standard of care must be gross is only likely to obscure the nature of the task before the jury.’
In the joint judgment in R v Lucas Newton, J, and Norris, AJ, referred (at p. 699) to the passage we have quoted from R v Horvath and their Honours were clearly not intending to say anything inconsistent with that passage. What their Honours said at p. 701 was: ‘We may add that, in our opinion, the word ‘gross’ in s 318(2)(b) has the meaning of ‘glaring, flagrant, monstrous’: see the Shorter Oxford English Dictionary. In the present case counsel for the applicant submitted to the learned judge that he ought to be allowed in his final address to the jury to illustrate the meaning of the word ‘gross’ by reference to, and comparison with, the elements of the tort of civil negligence. His Honour rejected this submission, stating that in his view any such reference and comparison would be contrary to what was said in R v Horvath, supra. But in fact there is nothing in the judgment in R v Horvath which either expressly or by implication prohibits a reference to, and comparison with, civil negligence for the purpose of explaining the meaning of s 313(2)(b) to a jury. In the present case, in our opinion, such a reference and comparison would have been both helpful to the jury and fair to the applicant.’
Nothing in this passage suggests that a trial judge should direct a jury that ‘gross’ means ‘glaring, flagrant, monstrous’. The importance of the passage is to point out that nothing in R v Horvath prohibits a comparison between civil negligence and the gross degree of failure to observe the standard of care which a reasonable man would have observed as referred to in s 318(2)(b). Their Honours considered that in the case before them, such a comparison would have been helpful to the jury. It was an introduction to that view that their Honours quoted and adopted the senses which the Shorter Oxford English Dictionary attributed to the word ‘gross’ when it is used, as the dictionary says: ‘in concord with substantives of evil import, and serving as an intensive of their meaning’. The reference to these senses helped to emphasize, if emphasis was needed, the difference between civil negligence and negligence for the purpose of s 318(2)(b).
In regard to the appropriate direction to be given by a judge to a jury, however, the introduction of the three words ‘glaring’, ‘flagrant’ and ‘monstrous’ are in most cases, in our opinion, unnecessary and, particularly in the case of the word ‘monstrous’, may be unwise. The word ‘gross’ in the context of negligence has a natural and well understood meaning. Its use in s 318(2)(b) conveys the sense of the high and reprehensible degree of negligence required for the driving of the offender to be culpable. If it needs to be explained to a jury, then so would the use in the same context of the words ‘glaring’, ‘flagrant’ and ‘monstrous’ need to be explained. Otherwise the jury would be faced with the unenviable task of endeavouring to find some sense, common to all three words, which is the sense in which they were intended to be used. It would in our opinion be unfortunate if the concept of culpable driving under s 318 were to lead to a proliferation of adjectives similar to that which has from time to time drawn criticism from the courts in connection with the concept of criminal negligence. We agree with the view which is implicit in what the Court said in R v Horvath, namely, that the words which have been prescribed by the legislature need no further explanation to make their meaning apparent to the jury. There may be some circumstances where a further explanation is called for, e.g. if a jury indicated that it required further assistance. We do not moreover disagree with the view expressed by their Honours in R v Lucas that a comparison between civil negligence and the negligence required by the section may be helpful. Such a comparison falls within the framework of the direction which the court in R v Horvath approved, as the comparison emphasizes ‘that the departure from the stated standard of care must be gross’. We agree with the court in R v Horvath that to do more than that is only likely to obscure the nature of the task before the jury.

[70]R v Stephenson [1976] VR 376 (Young CJ, Nelson and Harris JJ) (‘Stephenson’).

[71]Ibid 382–3 (emphasis added).

There the matter of appropriate directions in cases of culpable driving under s 318(2)(b) essentially stood until De’Zilwa, to which I will shortly turn. For reasons that will soon become plain, it is necessary at this point, however, to take notice of the elements of the crimes of negligently causing grievous bodily harm and of manslaughter by criminal negligence.

The negligence in manslaughter by criminal negligence

In Shields,[72] the Full Court held the degree of negligence required to be proven for the purposes of s 318(2)(b) to be ‘the same degree as that required to support a charge of manslaughter’.[73] The applicant in that case had been charged with one count of culpable driving under s 318(2)(b), count 1, and three counts of negligently causing grievous bodily injury under s 26 of the Crimes Act 1958,[74] counts 2, 3 and 4. He was acquitted by a jury of counts 1, 2 and 3, but found guilty of count 4. The applicant sought leave to appeal against his conviction on the basis that the trial judge misdirected the jury as to the meaning of ‘negligently’ in s 26.[75] At trial, the judge directed the jury that the negligence necessary to sustain the charges under s 26 was less serious than the negligence necessary to sustain the charge of culpable driving, and that the negligence required under s 26 need not be ‘gross’ but must be serious. The Full Court held this to be a misdirection, and said:[76]

With respect to those of a contrary opinion, it is not a necessary condition for conviction of an accused person under either s 318 or s 319 that the jury considers that the accused person’s conduct merits criminal punishment, and juries should not be directed that it is. …

[115]Ibid 615–16 [68]–[69] (citations omitted; emphasis added).

Finally, Bell J made it plain that, in her view, the expression ‘merited criminal punishment’ — if to be retained at all — should be confined to manslaughter by criminal negligence:[116]

The logic of a direction on the trial of a criminal offence that the accused’s conduct must ‘merit criminal punishment’ has been questioned. The elements of manslaughter by criminal negligence stated by the Full Court in Nydam v The Queen include that the accused’s conduct must warrant punishment under the criminal law. This appeal does not provide the occasion to consider the continued usefulness of the direction in the case of negligent manslaughter. However, I agree with French CJ, Crennan and Kiefel JJ that there is no warrant for transposing the direction to the trial of a count of dangerous driving causing death.
Neither party challenged De’Zilwa in their written submissions. However, on the hearing of the appeal, the utility on the trial of a count of culpable driving causing death of the ‘merit criminal punishment’ direction was in issue. The direction does not aid the jury’s appreciation of what extent of departure from the standard of care amounts to a ‘gross degree’ since departure from the standard of a lesser degree is also punishable as a serious criminal offence. The direction is likely to mislead in any case in which the alternative verdict is left, given that the difference between the offences does not turn on proof that culpable driving merits criminal punishment. In my opinion, the direction should be confined to the offence of manslaughter by criminal negligence.

[116]Ibid 620-1 [82]–[83] (citations omitted; emphasis added).

It is noteworthy that, in the wake of King, Refshauge J, sitting as a trial judge in Wolter,[117] declined to follow De’Zilwa. The accused in that case was charged with culpable driving causing death by driving negligently. Section 29(2) of the Crimes Act 1900 (ACT), creates the offence of culpable driving of a motor vehicle. By virtue of s 29(7) of that Act — the language of which largely mirrors the language of s 318(2)(b) of the Crimes Act 1958 — ‘a person shall be taken to drive a motor vehicle negligently if the person fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case’. Initially, Refshauge J had indicated that he would charge the jury in accordance with De’Zilwa — which had been followed in the Australian Capital Territory in Antoniazzo[118] — but, having subsequently had regard to the High Court’s pronouncements in King, he declined to do so. He said:[119]

I note that in R v Horvath the court, at 539, made the sage and important point that:
… the proper course for the trial judge to adopt is to confine himself [sic] to the very terms of the relevant legislation to draw attention to the requirement that the jury must be satisfied that there has been a failure on the part of the accused to observe the prescribed standard of care and that the failure must not only be unjustified but must be to a gross degree. The legislature has in words prescribed the degree of departure from the standard of care required to constitute the offence, and to do more than emphasise that the departure from the stated standard of care must be gross is only likely to obscure the nature of the task before the jury.
While, in R v Stephenson, the court held that no elaboration of the meaning of ‘gross’ should be given to the jury, the court in R v De’Zilwa accepted that the suggestion from that case that the word ‘gross’ had a natural and well understood meaning was no longer true and considered that ‘the time has come for juries to be given more assistance as to their task in cases of this kind’.
I will, accordingly, amend my directions … and give a direction that is in accordance with the terms of s 29 of the ACT Crimes Act, but with the appropriate elaboration as to the meaning of ‘gross’ as contemplated by the comment I have just quoted.

[117]R v Wolter (No 2) (2015) 302 FLR 1 (‘Wolter’).

[118]R v Antoniazzo (2010) 55 MVR 261 (Gray J).

[119]Wolter, 8 [35]–[37] (citations omitted).

Prior to returning to the implications of King for the resolution of the present case, I should observe that, insofar as it was necessary for him to do so in the peculiar circumstances of this case, the appellant’s counsel at trial satisfied the obligations placed upon him by the provisions of Part 3 of the Jury Directions Act 2015. In discussion, the judge had flagged with counsel that he intended to give to the jury the directions on negligence (extracted above) that he did. He gave that indication after the appellant’s counsel raised the issue of necessary directions, expressly referring to King and De Montero. As best I am able to follow it, counsel suggested that the judge should give directions which did not use the contentious expression, whilst also submitting that the judge generally should adhere to the De’Zilwa formulation.[120] Counsel appeared to foreshadow the potential consideration of the issue on appeal. Hence, after the judge indicated what he would say about negligence, there was the following exchange:[121]

HIS HONOUR: Negligence is the same, but instead of having death, you have got serious injury.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: The same test will determine whether or not the negligence was gross negligence. It has to be gross negligence, even though the charges — and it has the same definition.
[DEFENCE COUNSEL]: And Your Honour should give that direction, and Your Honour shouldn’t do what I am going to suggest, but I want to make it clear that, in my submission, and it’s ultimately — it’s potentially a submission for down the track, but I want to make it absolutely clear that, in my submission, in telling a jury to assess criminal negligence in this case, in a case of culpable driving, by making any reference to deserving or meriting criminal punishment is a danger, and that it ought be explained in a different way, and that instead of saying, ‘Such a high risk of death or really serious injury that it deserves or merits criminal punishment’, what should be said is that, ‘It involved a very high risk of death or really serious injury’. I have no authority for that proposition.
HIS HONOUR: You have put your proposition.
[DEFENCE COUNSEL]: I have put the proposition.

[120]Although the Charge Book contains a ‘warning’ about what was said in King, there is no suggestion as to how a jury might be directed so as to accommodate the dictates flowing from De’Zilwa consonantly with the disparate views expressed in King.

[121]Emphasis added.

Although, as I have said, the High Court in King made a number of obiter observations about the desirability of the continued use of the expression ‘merited criminal punishment’ in jury directions concerning culpable driving causing death by gross negligence, the Court’s opinion that there is no place in a direction concerning dangerous driving causing death under s 319 of the Crimes Act 1958 for the concept of conduct ‘meriting criminal punishment’ developed in relation to manslaughter by criminal negligence (and other offences of criminal negligence), is central to the Court’s reasoning and thus binding so far as the offences under s 319 are concerned. In my opinion, the binding nature of that aspect of King must also dictate that the concept of conduct ‘meriting criminal punishment’ has no place in a direction on culpable driving under s 318(2)(b).

The reason is simple. It is difficult to imagine any circumstance where, on a charge of culpable driving causing death under s 318(2)(b), a trial judge could avoid leaving dangerous driving causing death to the jury as an alternative verdict. That being so, retaining the concept of ‘meriting criminal punishment’ as part of the directions on negligence for culpable driving, whilst eschewing it for the statutory alternative, carries with it the risk that juries will too readily convict on the admittedly lesser alternative.[122] Moreover, if a judge were to direct on culpable driving in terms that included as part of the formulation that the necessary conduct was required to merit criminal punishment before a conviction could be returned, sub silentio the jury might conclude that the conduct founding the charge of dangerous driving did not have to possess that character. It would be impossible for a judge to dispel such an impression in the jury’s collective mind without running the unacceptable risk of introducing what now must be seen as an irrelevant and prejudicial consideration.
[122]The same is true, of course, for negligently causing serious injury and the alternative of dangerous driving causing serious injury.

Directions in future cases under s 318(2)(b) of the Crimes Act 1958

A conclusion that the formulation of negligence for the purposes of a charge under s 318(2)(b) should not in future contain an instruction that the jury must be satisfied that the relevant act or omission merits criminal punishment begs the question of how juries are to be directed from this point on.

In resolving that issue, it is necessary to recognise that a number of themes emerge from the authorities, most of which are not incompatible:

· First, it was emphasised in several cases that when directing a jury on the elements of the offence under s 318(2)(b), a trial judge should in general confine himself or herself to the statutory text. Thus, the jury should be directed that a person drives ‘negligently’ for the purpose of this offence if he or she fails unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all of the circumstances.

· Secondly, although attempts to elaborate on the meaning of ‘gross’ are not forbidden, such attempts may be unwise (and synonyms such as ‘glaring, flagrant, monstrous’ should be avoided).

· Thirdly, however, in contemporary society ‘gross’ is not a word in common use (except, perhaps, as slang, and in a vernacular and imprecise sense).

· Fourthly, past experience has demonstrated that, since ‘gross’ is not a word in common usage, juries frequently have asked for an explanation of its meaning.

· Fifthly, ‘gross’ negligence is negligence of the same order as that which is necessary to found a conviction for negligent manslaughter.

· Sixthly, juries may be assisted by a comparison with civil negligence.

· Seventhly, flowing from King, a trial judge should avoid introducing any requirement that the impugned conduct must merit criminal punishment.

In the future, therefore, in my opinion a jury trying a charge under s 318(2)(b) ought be directed that, for the purposes of culpable driving causing death by gross negligence, a person drives negligently if he or she unjustifiably and to a gross degree fails to observe the standard of care which a reasonable person would have observed in all of the circumstances. The jury should be told that ‘gross’ is an ordinary English word which should be given its ordinary meaning, but that it conveys the notion that the required negligence must be of a high order, involving a great falling short of the standard of care which a reasonable person would have exercised in all of the circumstances, and involving a high risk that death or serious injury would follow from the relevant conduct. It would usually also be helpful to explain that, since the required negligence must be of a high order, and must involve a high risk of death or serious injury, the kind of negligence which might be constituted by momentary inattention or a minor error of judgment, or which might found a simple civil claim for monetary compensation, generally would not be sufficient to support a finding of gross negligence. And it will be necessary, of course, to point to those matters which might go to constitute negligence of the high order necessary for conviction.[123]
[123]Appropriately modified directions will also be suitable on a charge of negligently causing serious injury.

The foregoing is not intended to be a model direction. Every charge must be moulded to the particular circumstances of, and issues raised by, a given case, but the above might serve as a general guide to the content of an appropriate direction.[124]
[124]It is probably unnecessary to say so, but trial judges should, of course, continue to direct on dangerous driving in the manner contemplated in King. See King, 602–4 [32]–[34], 605 [38] and 608–9 [46].

There has been no substantial miscarriage of justice

Given that the trial judge in this case introduced the concept deprecated in King, it may be assumed that justice has miscarried, notwithstanding that the trial judge’s directions complied with the law as it was understood at the time of the trial. In my view, however, there has been no substantial miscarriage of justice — and the appeal must be dismissed — for two principal reasons.

First, in my opinion, conviction was inevitable, no matter the manner in which gross negligence was explained to the jury. In expressing that conclusion, I need do no more than point to the evidence (and in particular, the contents of the Admissions of Fact) summarised earlier in these reasons, which eloquently demonstrates the very high order of the appellant’s negligence. The absolutely impoverished nature of the defence case is emphasised, however, by the manner in which defence counsel went to the jury. To anyone experienced in criminal advocacy, counsel’s final address was, to say the least, spare. Having read it a number of times, I have been unable to discern much — if anything — by way of reasoned argument, or analysis of the evidence, by which the jury might have been persuaded to acquit the appellant on the principal charges. Of course, counsel may simply have been following instructions, but the content of his final address underscores the fact that, even were the jury misdirected, conviction was unavoidable.

The second reason for concluding that there has been no substantial miscarriage of justice flows from a consideration of the terms of s 422A of the Crimes Act 1958, and the manner in which the judge charged the jury with respect to the statutory alternatives.

Section 422A provides:

422A Alternative verdict for certain charges relating to driving
(1)If on the trial of a person charged with an offence against section 318 (culpable driving causing death) the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that he or she is guilty of an offence against section 319(1) (dangerous driving causing death), the jury may acquit the accused of the offence charged and find him or her guilty of the offence against section 319(1) and he or she is liable to punishment accordingly.
(1A)If on the trial of a person charged with an offence against section 24 (negligently causing serious injury) the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that he or she is guilty of an offence against section 319(1A) (dangerous driving causing serious injury), the jury may acquit the accused of the offence charged and find him or her guilty of the offence against section 319(1A) and he or she is liable to punishment accordingly.

It is clear from the terms of s 422A that the jury’s power to return a verdict on the alternative offence is premised on the jury not being satisfied beyond reasonable doubt of an accused person’s guilt on the principal offence. Self-evidently, the jury in the appellant’s trial were satisfied of his guilt on the charges of culpable driving causing death and negligently causing serious injury, so that there was no occasion for them to consider the alternative offences.

In King, French CJ, Crennan and Kiefel JJ described the operation of s 422A as follows:[125]
[125]King, 595 [12] (emphasis added; citation in original). See also 611–12 [56] (French CJ, Crennan and Kiefel JJ); 614–15 [65] (Heydon J).

As a matter of construction, the power to deliver an alternative verdict of guilty of the offence under s 319 is conditioned upon the jury not being satisfied that the accused is guilty of the offence charged under s 318. It is only ‘if’ the jury are not so satisfied that their attention is directed to the lesser offence. Consideration of the s 318 offence may therefore be seen as a condition precedent to consideration of the offence under s 319. The word ‘may’ in s 422A(1) is in the nature of a permission, which may be acted upon, when the jury is satisfied that the accused is guilty of the offence under s 319. That word governs the composite term ‘acquit … and find him or her guilty of the offence against section 319’. There is no other source of power conferred by the Crimes Act to return a verdict for a lesser offence where culpable driving causing death is charged.[126]

And their Honours later observed:[127]

The Crown sought to invoke the proviso submitting, consistently with the reasons of the Court of Appeal, that the findings of fact made and the conclusion reached by the jury as to the more serious offences under s 318 meant that any misdirection as to the lesser offences under s 319 could not have affected the outcome in this case. That submission directed attention to the provisions of s 422A of the Crimes Act. That section conditions the jury’s power to return a verdict of guilty of an offence against s 319, in relation to a person charged with an offence against s 318, upon their want of satisfaction that the person is guilty of the offence against s 318. That is to say, the jury has no power to return the alternative verdict unless first satisfied that the person is not guilty of the offence against s 318. Had it been necessary to consider the effect of that limitation on the application of the proviso, it would also have been necessary to have regard to the decisions of this Court in Gilbert v The Queen,[128] Gillard v The Queen[129] and R v Nguyen.[130] There is, however, no need to consider either the effect of the limitation or its interaction with those decisions^[[131]] in order to dispose of this appeal.

[126]For authority to deliver alternative verdicts in respect of other classes of offence see ss 4, 6B, 421 and 425–435 of the Crimes Act [1958].

[127]King, 611–12 [56] (citations in original; emphasis added).

[128](2000) 201 CLR 414, especially at 420 [13] and 421 [16] (Gleeson CJ and Gummow J).

[129](2003) 219 CLR 1, especially at 41-42 [133] (Hayne J).

[130](2010) 242 CLR 491 especially at 505 [50].

[131]Gilbert, Gillard and Nguyen were cases where, on a charge of murder, an alternative verdict of manslaughter was not properly left for the jury’s consideration. In essence, each of the nominated passages from those cases is concerned with the proposition that an appellate court should not assume that juries adopt a mechanistic approach to the task of fact-finding divorced from a consideration of the consequences of their findings; and that appellate courts should recognise the reality that juries may take a view of the facts influenced by the choices of verdict offered and the instructions given as to the consequences of the different verdicts.

The judge directed the jury that they were only to consider the alternative charges if not satisfied beyond reasonable doubt that the appellant was guilty of culpable driving and negligently causing serious injury. He instructed the jury that they were to ask themselves whether the evidence proved those charges beyond reasonable doubt. If it did, he told the jury, ‘you will find him guilty and you do not have to consider the alternative charges, but if you find him not guilty of culpable driving and negligently causing serious injury, because you are not satisfied his driving reaches the required standard, you will then have to consider the alternative verdicts of dangerous driving causing death and dangerous driving causing serious injury’.

During the hearing in this Court, perhaps as a result of observations made by one or more of its members, a further complaint emerged to the effect that the judge’s directions were apt improperly to fetter the manner in which the jury ordered their deliberations (hence the application to add proposed ground 4). That complaint is without substance. Leave to add the proposed ground 4, as formulated in the running, should be refused.

In my view, the complaint embodied in proposed ground 4 had an air of unreality about it, since the appellant’s was a single issue trial. He had confessed before the jury by his guilty pleas that his driving was dangerous. The sole issue was whether the jury could be satisfied that his driving was negligent to a gross degree. That was made abundantly clear to the jury. After the jury asked the question earlier referred to,[132] the judge directed as follows:[133]

So the one thing you have to determine is whether it is culpable. You don’t have to determine whether it’s dangerous, you don’t have — because he admits it is but I will tell you in a general sense what ‘dangerous’ is and I will tell you in great detail what ‘gross negligence’ is. … We’re not dealing with civil negligence, we’re dealing with criminal negligence, and when I come to charge you I’ll tell you exactly what criminal negligence means. It’s such a departure from the standard of care that a normal person would expect, and it poses such a risk of danger or death that it warrants being called culpable, and that’s what you have to determine, whether in this case, and I’ll define that in much more detail and with more precision, but I’m giving you an overview now, whether or not the apparent uncontradicted facts constitute culpable driving or not.
They either do or they don’t. If the Crown satisfy you beyond reasonable doubt that the elements, the ingredients of culpable driving are made out, you’ll find them [sic.] guilty, if they don’t satisfy you, you’ll find him not guilty, you won’t have to worry about the alternative count of dangerous driving, I will tell you what that is, but he’s pleaded guilty to that. He says ‘I’m guilty of that but I’m not guilty of that’. You follow? It is a question for you as to whether or not it does reach the standard that his driving is of such a poor quality, such gross negligence as to amount to culpable driving.

[132]See [123] above.

[133]Emphasis added to this and following passages.

On the same topic, in his charge to the jury the judge directed as follows:

The law says, as I told you yesterday, that whenever the prosecution bring charges of culpable driving by criminal negligence and negligently causing serious injury, the two charges here, the jury must consider alternative charges of dangerous driving causing death as an alternative to dangerous driving, and dangerous driving causing serious injury, as an alternative to negligently causing serious injury. They have to both be left to the jury as alternative charges to the car.
In this case the accused man pleaded guilty to both those alternative charges when he was arraigned in the first place. You might recall he said not guilty to culpable driving but guilty to dangerous driving causing death, and similarly, not guilty to negligently causing serious but guilty of dangerous driving causing serious injury.
You only consider the alternative charges if you are not satisfied beyond reasonable doubt that the accused is guilty of culpable driving and negligently causing serious injury. That is why I say that is the issue for you in this trial. You ask yourself whether the evidence proves those charges beyond reasonable doubt. If it does you will find him guilty and you do not have to consider the alternative charges, but if you find him not guilty of culpable driving and negligently causing serious injury, because you are not satisfied his driving reaches the required standard, you will then have to consider the alternative verdicts of dangerous driving causing death and dangerous driving causing serious injury.

The judge’s directions were in accordance with the language of s 422A of the Crimes Act 1958. Properly understood, they did not fetter the manner in which the jury were to consider their verdicts by impermissibly dictating the sequence of the jury’s deliberations.[134] They simply made clear to the jury that they need not consider the alternative dangerous driving charges unless they were not satisfied of guilt on the primary charges alleging gross negligence. In a case where the sole issue was whether the appellant’s driving was attended by gross negligence, it is fanciful to suggest that the judge’s directions infringed the principle in Stanton.
[134]Stanton v The Queen (2003) 198 ALR 41 (‘Stanton’). See also LLW v The Queen (2012) 35 VR 372; Medici v The Queen (2013) 39 VR 350; Smith v The Queen (2013) 39 VR 336; Vo v The Queen (2013) 39 VR 543.

I note in this regard that in King, the trial judge in that case had given the following direction, which, as I understand the judgment, was not the subject of any criticism by the High Court:[135]

Dangerous driving causing death, as I said, is an alternative offence to culpable driving causing death. This means that you only need to consider it if you find the accused not guilty of culpable driving causing death. If you find the accused guilty of culpable driving causing death you do not need to make a determination of whether he is also guilty of dangerous driving causing death; it is an alternative.

[135]King, 595 [13] (emphasis added).

To conclude, as is plain from the charge, the judge directed the jury consistently with the statutory language and according to the formula appropriate for manslaughter by criminal negligence. His inclusion of the criticised concept — ‘that the driving which caused the death in question merited criminal punishment’ — cannot have led to any substantial miscarriage of justice, since, if anything, it made the path to conviction more difficult for the prosecution.

Conclusion

The appeal must be dismissed.

----

[2017] VSCA 86

20 April 2017