Chandler v Director of Public Prosecutions

[2001] HCATrans 22

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S129 of 2000

B e t w e e n -

PAUL SUMMERS CHANDLER

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

First Respondent

THE JUDGES OF THE DRUG COURT OF NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 FEBRUARY 2001, AT 3.22 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC:  If the Court pleases, I appear for the applicant with my learned friend, MS R.W. BURGESS.  (instructed by Legal Aid Commission of New South Wales)

MR A.M. BLACKMORE:  If the Court pleases, I appear for the respondent with my learned friend, MR M.C. MARIEN.  (instructed by Director of Public Prosecutions)

GAUDRON J:   I should indicate that I have a certificate from the Deputy Registrar who certifies that she has been informed by the solicitor for the second respondent that the second respondent does not wish to be represented at the hearing of the matter and will submit to any order of the Court, save as to costs.  Yes, Mr Game.

MR GAME:   If the Court pleases.  The offence ‑ ‑ ‑

KIRBY J:   This is just a State Act, Mr Game; this is just a State law and only dealing with State matters and State practice.  Why should we get involved in this?

MR GAME:   Well, your Honour, because, first of all, section 35A(b) says that the administration of justice and in a particular instance there may be a grant of special leave.  In cases like Radenkovic, special leave was granted to correct a sentence.  But, your Honour, we have a situation with respect to the Drug Act which is an innovative Act, where this decision, in our submission, is clearly wrong.  This decision is a decision in which one is defining the jurisdictional facts upon which the court operates.  Not only is this decision almost certainly wrong, but there are now three decisions in which the jurisdiction of this court is defined.  Sloane is one of the other and Ranse is the other; they were both examined by Justice Powell.  Sloane is almost certainly wrong too.  So we have a court operating in New South Wales which thinks that the offence of robbery is not an offence involving violent conduct, but the offence of culpable driving is an offence involving ‑ ‑ ‑

McHUGH J:   Well, one of them may, but it just shows how people’s minds differ about that.  You submit the decision here is plainly wrong.  I must say, when I read it, I thought it was plainly right.  So, one has different impressions: “an offence involving violent conduct”.

KIRBY J:   It is not an offence of violent conduct, it is “an offence involving ‑ ‑ ‑

MR GAME:   But, your Honour, there is no violent conduct in the offence of culpable driving.  If one identifies the elements of that offence, and if your Honours look at page 26 of the application book, there are two short passages from Giorgianni from Justice Mason’s judgment at the bottom of the page:

However, it is apparent from the terms of the section that mens rea is not an essential element of the misdemeanour which it creates.  In order to support a conviction under s.52A it is sufficient that death or grievous bodily harm to a person was occasioned through the specified means –

that is to say, impact –

at a time when –

so there is no necessary connection between the actual negligent act, and this is an offence of negligence.  It can be committed by falling to sleep, by momentary inadvertence, my mechanical failure, to name just some examples, but I interpolate that –

when the defendant was driving under the influence of intoxicating liquor or of a drug or at a speed or in a manner dangerous to the public.  It is well settled that the test . . . is an objective one which takes into account ‘all matters connected with the management and control of a car by a driver when it is being driven.

Now –

Those matters, of course, include the mechanical condition of the motor vehicle.

So, where is the violent conduct?  Conduct is transitive, it connotes some conduct of a particular kind.  It involves the notion of deliberation or fore ‑ ‑ ‑

McHUGH J:   No, it does not.  The dictionary definitions state it is the application of rough, strong physical force.

MR GAME:   No, that is the word “violence”.  You have to give both words their operation.  It does not say “an offence of violence”.  It says “an offence involving violent conduct”.

McHUGH J:   Yes.

MR GAME:   Well, “conduct” is a completely different word than “violence” and I will just give your Honours a definition of “conduct”.

McHUGH J:   But we are talking about “violent conduct”.

MR GAME:   Yes, but you have to take both words.

McHUGH J:   Yes, why does not “violent conduct” mean conduct that includes the application of rough, strong physical force?

MR GAME:   But where is the conduct?  That is leaving out the word “conduct”.

McHUGH J:   No, it describes what the conduct does.

MR GAME:   But the only conduct here that one is talking about is the voluntary driving of a car, the voluntary ‑ ‑ ‑

KIRBY J:   Why is that not conduct, Mr Game?

MR GAME:   The voluntary and conscious driving of a car, that is the conduct.

KIRBY J:   Yes.

MR GAME:   But that is not violent, there is no violence in that.

KIRBY J:   No, it is a composite ‑ ‑ ‑

McHUGH J:   But it has to involve.

MR GAME:   Sorry, that conduct, by broadening it to “involve”, it does not affect the conclusion because ‑ ‑ ‑

McHUGH J:   It is “an offence involving violent conduct”.

MR GAME:   Yes, but, your Honour, all that comes down to ‑ ‑ ‑

McHUGH J:   Surely, would you accept that there are 52A cases that would fall within  ‑ ‑ ‑

KIRBY J:   Road rage, sheer road rage.

MR GAME:   Yes, your Honour, road rage is a completely different offence, but ‑ ‑ ‑

McHUGH J:   Let us not worry about the offence of road rage.  The use of a motor vehicle to deliberately run somebody down, as we had in a case in the Court of Appeal, a civil case for damages some years ago.

MR GAME:   Yes, absolutely, that is exactly right because you are using a car as a dangerous weapon in that particular instance.  That is not an element of this offence.

McHUGH J:   I know, but it is “an offence involving violent conduct”, is it not?

MR GAME:   No, but that has nothing to do with the offence.  All that has got to do with is the facts of that particular case.

McHUGH J:   Yes, I know, exactly, but that is the point, is it not?  I mean, in your theory of the section, if somebody uses the greatest threats of violence and uses actual violence, duress to steals something, and is charged with stealing, the stealing is not an offence within 5(2) because the stealing itself does not involve violent conduct.

MR GAME:   If the person is merely charged with stealing, that is correct.  You cannot go beyond the particular – because it says “charged with”, the jurisdictional fact is identified by the charge.  What the offence, “an offence involving” means an offence as defined involving violent conduct.

McHUGH J:   What about armed hold-up?  Is that - - -?

MR GAME:   That is an offence involving violent conduct.

McHUGH J:   Why?

MR GAME:   Because it involves the threat of violence or violence as an element.

KIRBY J:   Now, Justice McHugh repeatedly reminds us that you should not just take the words in isolation, you have to look at the sentence.  Is there any clue to be obtained either from the juxtaposition with sexual assault or from the context in the entire section and the purpose of the statute that helps you in any way or - - -?

MR GAME:   Well, your Honour, if you go back to page 33 of the application book, it says:

3(1)  the object of this Act is to reduce the level of criminal activity that results from drug dependency.

Now ‑ ‑ ‑

KIRBY J:   What is the bottom line, in terms of what happens to your client here?  Does it make a difference to the ‑ ‑ ‑

MR GAME:   It makes the entire difference.  He has been found eligible, apart from this particular requirement, so he will go before the Drug Court to be sentenced, and this is an offence in which one of the conditions is that he would otherwise be highly likely or very likely to go to gaol.  So, he would otherwise go to gaol for a substantial period of time, as opposed to being put under a drug rehabilitation program.

Now, the whole point about this provision is this, that where it says “an offence involving violent conduct or sexual assault”, what the legislature is saying is that there is some special wickedness involved with certain crimes, some special wickedness where there is violent conduct, ie deliberation about it, just as with sexual assault.  Now, what this is being turned into is that you have an offence in which by any means attracting liability a person sustains injuries, that is said to be violent conduct.  It advances the argument not one jot, in our submission, to describe a car as a dangerous weapon which is really the ratio of Justice Hodgson’s judgment.  The reason for that is that a dangerous weapon implies the very question, that is to say, it implies that the vehicle is being used as a means to achieve a violent end.

McHUGH J:   Here is your client driving at 90 kilometres an hour in a 70 kilometre per hour zone.  He changed lanes in what was described as an aggressive manner and he proceeded to weave in and out of traffic and ultimately he hit another vehicle, causing the death of the driver.  Now, why could you not describe that as violent conduct on his part?

MR GAME:   Well, just to add one thing, is he attempted to correct.  But first we would say that the actual conduct involved in the case as accepted by the Court of Appeal and accepted by the respondents, what actually happened in the case has got nothing to do with whether or not the person is charged with an offence involving violent conduct (a), nobody is putting forward that proposition at this point; (b) that particular driving, one might expect, is perfectly ordinary for a person who is under the influence of drugs.  That is to say, there is no special wickedness of violent conduct involved in that particular driving.  It is absolutely ‑ ‑ ‑

KIRBY J:   I am sorry, finish the answer.

MR GAME:   No, that is really the answer, your Honour.

KIRBY J:   In relation, if you look at the structure, it is a grant of jurisdiction to a court which would generally, especially given its reformatory character, be given a large dimension.  Then there are exceptions for “offences punishable” and they are specified offences, and (c) is “any other” kind of offence in the regulations, so that is a specified offence.

MR GAME:   Yes.

KIRBY J:   Then the other one is “an offence involving violent conduct or sexual assault”.  Are the words “involving violent conduct or sexual assault” in brackets, so that as with the other two subparagraphs, this is something which is integral to the offence as an offence, as distinct from the features that, in fact, were involved in the commission of the offence?

MR GAME:   Absolutely, your Honour.  Yes, and it is most unlikely that the legislature, in defining a jurisdictional fact in these terms, would expect you to go beyond the terms of the indictment to ask yourself whether or not the person had been charged with such an offence.  That is borne out in our submission by – one would not look, for example, at the sexual assault and ask oneself – I mean, an offence of indecency:  one would determine that as a question of statutory construction, not by looking at the particular facts of the case, but an offence involving violent conduct is obviously a better example.  But one must simply ask oneself, as Justice Powell did in the Court of Appeal, “Is an element of the offence of culpable driving violent conduct?”  That takes one inexorably, in our submission, to a consideration of the mental element of that offence.  Once one is taken to the mental element of the offence, one ‑ ‑ ‑

GAUDRON J:   Why?  I mean, that is your premise, but if one accepts that premise, then, prima facie, it seems to me, you would succeed.  But why must you go to the mental element?  Why can you not as a matter of ordinary language say conduct that has the consequence that unreasonable, rough force is applied to somebody?

MR GAME:   But, your Honour, there has to be conduct by which rough force is applied.  There is no conduct here. 

GAUDRON J:   Yes, well ‑ ‑ ‑

McHUGH J:   Is it driving a vehicle which has an impact?

MR GAME:   That is not violent conduct.

McHUGH J:   Why not?

MR GAME:   If you drive in your car and you pick up your mobile telephone and take a call, and then have an accident and somebody is injured, nobody would describe that as violent conduct.  On your part, picking up your telephone is ‑ ‑ ‑

GAUDRON J:   No, but does the offence involve violent conduct?

KIRBY J:   But that really comes down - that is the essence of the question.  Is it an element or ingredient of the offence as defined?

MR GAME:   Yes.

KIRBY J:   Supporting that are categories (a) and (c).  Against that is the very broad word, “involving”.  If you are looking at the whole of the paragraph and in the context of a grant of jurisdiction to a novel court with reformatory jurisdiction not to be cut down needlessly, you support Justice Powell.  If you just look at the phrase, “offence involving violent conduct”, then you support the majority.

MR GAME:   Yes, could I just hand your Honours a definition of “conduct” from the Macquarie Dictionary.

KIRBY J:   You can do that, but I think the key to the case is in the word “offence” and the structure of the subsection, at least that is what I am presently minded - - -

MR GAME:   I put that as well, I do.  But when it says:

conduct – noun 1. personal behaviour; way of acting; deportment . . . 3. the act of conducting . . . 6. to direct in action of course . . . 7. to direct –

that is why it was put that it was transitive and, in our submission, “driving” answers a particular objective description, cannot be described as violent conduct, it is as simple as that.

Now, all of the court accepted that the legislation should be interpreted broadly or favourably - or depending how one views it narrowly, but in a way that gives beneficial application.  But that is not the way in which it has been interpreted here and there is absolutely nothing in either the terms of the legislation or the second reading speech which would suggest that if a person is under the influence of drugs and picks up their keys and gets in their car and drives, that that should be excluded and then they commit an offence whilst driving, which would be a matter of chance or probability, depending on what occurred in the particular circumstances, if they were under the influence of drugs, that somehow they should be excluded, but that the person who then goes and commits a stealing or a

break-and-enter or even a robbery, according to Sloane’s Case, they will be admitted to the scheme.  It just does not follow, in our submission.

GAUDRON J:   Maybe Sloane’s Case is wrong, but that does not necessarily have the consequence that this case is wrong, does it?

McHUGH J:   I mean, in ordinary speech, would you not agree, that you would say that the person who died in this case died a violent death as the result of being killed in a car accident?

MR GAME:   Well, they sustained injuries as the result of the negligence of the driver.  They certainly did not die a death as a result of violent conduct.

KIRBY J:   No, they did not die a death as a result of “an offence involving violent conduct”.

MR GAME:   That is correct.

KIRBY J:   You would say you are misdirecting the target of your attention.  Your attention should not be on the violence of the death or even the violence of the conduct, but on the offence and its character because (a) is offence, (b) is offence, (c) is offence, where you are looking at offences and their ingredients in law.  Anyway that is your argument.

MR GAME:   Yes.  I do not know that standing here putting my argument more and more dogmatically is going to necessarily make any difference, but ‑ ‑ ‑

KIRBY J:   No, we are used to it.

GAUDRON J:   Yes, thank you Mr Game.  Mr Blackmore, please.

MR BLACKMORE:   Your Honours, I want to take the Court to a few matters that were raised by my friend initially.  Firstly, it was said that this is the last hurdle for this applicant in this Court.  I am afraid that is far from so.  The judge specifically said, and this is on page 12 of the book, bottom of the page:

33.  I do not propose to consider the issues of “usual place of residence” –

which is another hurdle that has to be got over in section 7, and then also –

s 7(2) discretion.

The court has not exercised its discretion here whether or not to accept this person into the program or not.  This is one of those peculiar matters which is ‑ ‑ ‑

KIRBY J:   But that cannot stop the applicant from advancing this particular issue because unless the applicant can get over this issue, everything else is irrelevant.

MR BLACKMORE:   True, true, but it is an issue that is one of those peculiar issues that you can raise on special leave to say that this is not an appropriate case.  If it was an appropriate case, all those hurdles would have been obtained.

KIRBY J:   But you would have to accept that this is not an unimportant question.  It has arisen in two other cases, two analogous cases, and charting out the jurisdiction of this special court, especially given that it is apparently being copied in some respects, though with different legislation in other States, is not an unimportant development in a very significant and innovative statutory scheme.

MR BLACKMORE:   I answer that this way:  this case involves section 52A only.  It is not going to analyse every single offence in the Crimes Act.  There are very, very few offences in the Crimes Act that use the words “violent conduct”.  What is being analysed, in our respectful submission, is, does the terms or elements of the offence, by their very terms and means, involve “violent conduct”?  We submit here, clearly, it does.  The conduct was driving.  Even just the description of the driving itself could be described as violent conduct.  But the conduct itself was the driving.  Violence was perpetrated by that driving.  It was not mere negligence.  I mean, negligence does not get you within section 52A.  It has to be the grossest form of negligence.

KIRBY J:   But if you look at the structure of (2) - this is the matter that worried me.

MR BLACKMORE:   Yes, I do have submissions in relation to ‑ ‑ ‑

KIRBY J:   The structure (2) is (a) is “an offence” and then it is very easy to look that one up; (c) is another “offence”and it is easy to look that up, so that (a) and (c) are concentrating on character of an offence.  Then you look at (b), and I do not think it is an offence which refers to or contains or is defined in terms of violent conduct, it must involve it, but the focus is on the offence, and there is no doubt that the offence of this character, 52A, can involve no violent conduct.  A person who falls asleep - there is no violent conduct in that case, so that if you look ‑ ‑ ‑

MR BLACKMORE:   There is conduct of driving, there has to be conduct of driving.  Jimenez tells us that there must be driving and that is conduct.

McHUGH J:   Jimenez says you are not guilty of an offence under 52A.

MR BLACKMORE:   Exactly, and it would be a very strange result, for example, if somebody who was this inebriated on drugs fell asleep and then ploughed into a whole crowd of people and was able to say, “I was not driving” if he was already aware that if he took those drugs, that is what would happen to him.

The objects of this Act are reasonably clear.  They are set out in the Act itself.  Also, there is the words which we have quoted in our written submissions in relation - - -

GAUDRON J:   The problem is, is it not, that you have a phrase of no precise legal content, it being having to have its ordinary meaning applied to quite precise legal considerations?

MR BLACKMORE:   That is a difficulty, and - - -

KIRBY J:   Normally that is to do with the definition of the jurisdiction of a court, a new court, a reformatory court.  You are not going to be chipping away there to keep it narrow.  You are going to be taking a large approach.

MR BLACKMORE:   Well, yes and no.  It is a question of ambiguity whether or not there is sufficient ambiguity as to whether or not you give some beneficial interpretation.  We would submit that clearly this was an offence that involved violent conduct, using those words.

KIRBY J:   But it also involved a person who, it is said, had a drug addiction and that that is the underlying cause of his crime and that of his offence - - -

MR BLACKMORE:   But not everybody who has a drug addiction will be permitted to be admitted to this program and, clearly, that would not - - -

KIRBY J:   Prima facie, they are in unless you can exclude them.

MR BLACKMORE:   That was not the object of the legislation.  It is demonstrable by simply looking at, say, (2)(a), which is:

an offence punishable under Division 2 of Part 2 –

is something that is excluded, and that is an indictable drug offence.  An indictable drug offence is excluded from the legislation.  That is something for which the penalty is longer than two years.  Here, in this State, in New South Wales to which this legislation applies only - - -

GAUDRON J:   There is no precise counterpart elsewhere?

MR BLACKMORE:   No precise counterpart.  There is legislation in Queensland which uses somewhat similar words but not precisely these words and it is in a different context.

The Court of Criminal Appeal in this State has handed down a decision in which it has given a guideline that an offence of dangerous driving causing grievous bodily harm would ordinarily entitle somebody to a penalty of three years.  Now, this was an aggravated – on any terms, this was an aggravated, dangerous driving.  He would, in ordinary terms, expect a penalty much more than three years.

McHUGH J:   Was a charge of manslaughter laid against this accused?

MR BLACKMORE:   I would have to check that, your Honour.  I am not sure.  I am instructed, no, your Honour.  I am sorry, I am not sure.

GAUDRON J:   But it would hard to come to the conclusion that a charge of manslaughter by driving a car would not be crime of violence.

MR BLACKMORE:   It raises a very interesting issue when you look at the interpretation that was put upon this legislation as to be an elemental test.

GAUDRON J:   Even where it is by reckless indifference.

MR BLACKMORE:   Is manslaughter normally something that has an element containing violence?  It may not.  There may be circumstances of manslaughter which do not involve violent conduct.

McHUGH J:   Well, breach of a duty to take care of somebody who starves; a child for instance; a parent who fails to supply food.

MR BLACKMORE:   Exactly.  I mean, I hesitate to say it.  I am not seeking leave, but if there was an error it was by constraining, in a sense, the interpretation of these two, simply, elements of the offence.  What the Crown submitted to the court below was that you look at both factors.  You look, in fact, at the elements of the offence.  Some elements would be obvious.  Robbery is a case – armed robbery, in particular, is a case almost certainly involving violent conduct, but other cases will not and, necessarily, by looking solely at their elements, and we submit in this case

52A does.  But there will be cases that do not.  In fact, it would be possible to look at the whole of the circumstances.

But the Court of Appeal, who is the highest court in this State, has given a decision in relation to this matter, determining New South Wales legislation - - -

KIRBY J:   We heard all that in the last case.  It did not go very far.

MR BLACKMORE:   I will not repeat it, your Honour.

Finally, perhaps if I can make this submission:  there is an issue of futility, in a sense, in this.  Your Honours will see that in section 5(2)(c) it is possible for the government to simply regulate an offence and it could regulate 52A as being an offence that would make somebody ineligible.  Now, that would not affect this applicant, I understand that.  Given the fact that he has still hurdles to pass, it would be really, perhaps, a futility for this Court to spend a day in the High Court, given its time constraints, making a decision on this particular matter when the government can simply regulate it.

KIRBY J:   This is the grand vision of the law of the Crown, that you are merely looking at the great stream - - -

MR BLACKMORE:   I only raise this issue, your Honours - - -

KIRBY J:   Here, on the other side of the table, we have an actual human being who is asking - - -

MR BLACKMORE:   Well, true, but he has not actually got into the program but for this problem, he has still a discretionary problem and given the fact that under normal circumstances he would receive a very heavy sentence, one would think, given the object of the legislation, that would be something that would weigh very heavily in relation to the discretionary decision.

GAUDRON J:   Yes, thank you, Mr Blackmore.  Yes, Mr Game.

MR GAME:   Your Honours, in our submission, the critical words in Justice Hodgson’s judgment appear at the bottom of page 41, “The conduct involves what can be regarded as a dangerous weapon”.  Now, if I could just hand your Honours this decision of Hamilton 66 A Crim R, the passage at 577, where the person was charged with an offence under 33B of the Crimes Act which is an offence involving using - - -

KIRBY J:   Why am I being left out of this?

MR GAME:   I handed up – here is one more, sorry.

KIRBY J:   The junior Justice always misses out.

MR GAME:   Sorry, your Honour.  It was a question arose as to whether or not a vehicle could be used as an offensive instrument or weapon under the relevant legislation.  In the Chief Justice’s judgment, his Honour said this – he rejected the argument that a vehicle could not be so used.  He said:

The question whether an object or article is an offensive instrument raises for consideration the nature of the object, the uses of which it is capable, and the intention of the person who is using it on the occasion in question.  An object which in its nature and in its ordinary use is not offensive may become an offensive instrument by reason of the use to which a person puts it, and the intent which accompanies such use.

And then there is a reference to Justice Zelling in Considine.

Now, a motor vehicle is not a dangerous vehicle.  A motor vehicle is something which has four wheels, an engine and can go forward fast, but it is not a dangerous weapon and it is not violent conduct to do anything with it until one has some deliberation about it; until one uses it intentionally in a particular way, and that is at the heart of this case.  That is why, in our submission, the Court of Appeal is clearly wrong.  It implies a means to achieve a violent end.

Now, with respect to the proposition about going to gaol, one of the conditions of this whole program is that the person is highly likely to go to gaol.  With respect to the argument about manslaughter, in our submission, if he were charged with manslaughter that would not be an offence involving violent conduct.  Manslaughter in the culpable driving context is constituted by manslaughter by gross criminal negligence.  There is that English line of case such as Andrews which says, in effect, you cannot crank up a manslaughter by culpable drive based on the unlawful act of dangerous driving and construing that as the unlawful act and then - - -

McHUGH J:   There are plenty of people charged with manslaughter in this State in the 60s and 52A was in a fairly similar form.  It was common to charge manslaughter and culpable driving together.  The practice seems to have stopped.

MR GAME:   There are authorities against the proposition that you can get a manslaughter out of the unlawful act of - - -

McHUGH J:   It depends how unlawful it is, particularly when drink is involved.  If somebody gets on the road well and truly under the influence, drives on the wrong side of the road and kills somebody - - -

MR GAME:   I was really putting an argument for how one defines “manslaughter”.  Subject to those matters, I think that is all I want to put in reply.

GAUDRON J:   Yes, thank you, Mr Game.

A majority of the Court is of the view that the approach taken by the majority of the Court of Appeal in this case was reasonably open.  That being so, by a majority, special leave is refused.

AT 3.53 PM THE MATTER WAS CONCLUDED