Director of Public Prosecutions v Saurini
[2022] VCC 1712
•31 March 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01360
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN JOHN SAURINI |
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JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF RULING: | 31 March 2022 | |
CASE MAY BE CITED AS: | DPP v Saurini | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1712 | |
RULING
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Subject: Emergency workers, emergency service vehicles
Catchwords: “Taken to know”, whether strict liability imposed regardless of whether prescribed circumstance was or could be perceived
Legislation Cited: s317AE(2), s317AF(1)(b) and s317AG(3) of the Crimes Act 1958
Cases Cited:
Ruling: Awareness of prescribed circumstance required
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Porceddu | Director of Public Prosecutions |
| For the Accused | Ms M. Walker | Wilkinson Lawyers |
HIS HONOUR:
1In this matter, the accused is charged with a number of offences. Charge 1 and Charge 2 are set out in the amended indictment upon which the accused was arraigned before the jury panel on Monday last. I set out in full the terms of Charge 1 and Charge 2:
Charge 1
2The Director of Public Prosecutions charges that Benjamin John Saurini at Sunbury in Victoria on the 5th day of July 2019 committed an offence against s317AE of the Crimes Act 1958 in that Benjamin Saurini without lawful excuse drove a motor vehicle in the vicinity of Senior Constable Rohan Brown, an emergency worker on duty, and recklessly exposed Senior Constable Rohan Brown to a risk to safety, knowing or being reckless as to whether Senior Constable Rohan Brown was an emergency worker, and committed this offence in connection with an offence against s317AG of the Crimes Act 1958, namely, recklessly drove a motor vehicle so that damage was caused to an emergency service vehicle, knowing that or being reckless as to whether the vehicle was an emergency service vehicle.
3Statement of Offence – Aggravated offence of recklessly exposing an emergency worker to risk by driving contrary to s317AF(1)(b) of the Crimes Act 1958.
Charge 2
4The Director of Public Prosecutions charges that Benjamin John Saurini at Sunbury in Victoria on the 5th day of July 2019 committed an offence against s317AE of the Crimes Act 1958 in that Benjamin Saurini without lawful excuse, drove a motor vehicle in the vicinity of Constable Peter Rigas, an emergency worker on duty, and recklessly exposed Constable Peter Rigas to a risk to safety, knowing or being reckless as to whether Constable Peter Rigas was an emergency worker, and committed this offence in connection with an offence against s317AG of the Crimes Act 1958, namely, recklessly drove a motor vehicle so that damage was caused to an emergency service vehicle, knowing that or being reckless as to whether the vehicle was an emergency service vehicle.
5Statement of Offence – Aggravated offence of recklessly exposing an emergency worker to risk by driving contrary to s317AF(1)(b) of the Crimes Act 1958.
6The statutory provisions that each of those charges rely upon are found in ss317AE, 317AF and 317AG. I set those provisions out in full:
“317AE Recklessly exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving
(1) A person who—
(a)drives a motor vehicle in the vicinity of another person who is an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty; and
(b)knows that, or is reckless as to whether, the other person is an emergency worker, custodial officer or youth justice custodial worker; and
(c)without lawful excuse, drives the motor vehicle and recklessly exposes the other person to a risk to safety—
is guilty of an offence and liable to level 5 imprisonment (10 years maximum).
(2) For the purposes of ss(1), the person is taken to know that the other person is an emergency worker, custodial officer or youth justice custodial worker (as the case may be) if—
(a)the other person has identified themselves as an emergency worker, custodial officer or youth justice custodial worker; or
(b)the other person is inside or in the vicinity of a vehicle which—
(i) bears the livery or insignia of an emergency service; or
(ii) is displaying a flashing blue or red light (whether or not it is displaying other lights); or
(iii) is sounding an alarm; or
(c)the fact that the other person is an emergency worker, custodial officer or youth justice custodial worker is reasonably apparent, having regard to all the circumstances, including the conduct and manner of the emergency worker, custodial officer or youth justice custodial worker.
(3) A person may be found guilty of an offence under ss (1) irrespective of whether the emergency worker, custodial officer or youth justice custodial worker was injured by the conduct of the person driving the motor vehicle.
317AFAggravated offence of recklessly exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving
(1) A person is guilty of the aggravated offence of recklessly exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving if the person commits an offence against section 317AE and any of the following apply—
(a)the motor vehicle driven by the person in the commission of the offence against section 317AE is stolen and the person knows that, or is reckless as to whether, the motor vehicle is stolen;
(b)the person commits the offence against section 317AE in connection with an offence committed by that person against section 317AG;
(c)the person commits the offence against section 317AE in connection with another indictable offence committed by that person, punishable by 10 years or more imprisonment.
(2) For the purposes of ss(1)(b) and (c), the offences are connected if—
(a)there is a close connection in time; or
(b)there is a close connection in place; or
(c)in the case of ss(1)(c), the purpose of the commission of the offence against section 317AE is to avoid apprehension for the other indictable offence.
(3) A person guilty of the aggravated offence of recklessly exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).
317AGDamaging an emergency service vehicle
(1) A person must not, without lawful excuse, recklessly drive a motor vehicle so that damage is caused to an emergency service vehicle.
Penalty:Level 6 imprisonment (5 years maximum).
(2) To be guilty of an offence under ss(1), the person must know that, or be reckless as to whether, the other vehicle is an emergency service vehicle.
(3) For the purposes of ss(2), the person is taken to know that the other vehicle is an emergency service vehicle if—
(a)the motor vehicle bears the livery or insignia of an emergency service; or
(b)the motor vehicle is displaying a flashing blue or red light (whether or not it is displaying other lights); or
(c)the motor vehicle is sounding an alarm; or
(d)the fact that the motor vehicle is an emergency service vehicle is reasonably apparent, having regard to all of the circumstances, including the manner in which the emergency service vehicle is being driven.
(4) In this section, emergency service vehicle means a motor vehicle that, at a particular time—
(a)is being used by an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty; or
(b)is ordinarily used by an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty—
regardless of whether it is occupied by an emergency worker, a custodial officer or a youth justice custodial worker at that time.”
7By way of background, it can be stated at once that many of the circumstances in which the offences are alleged to have occurred have not been controversial in the trial.
8On the night of 5 July 2019, getting on for midnight, the accused and two friends occupied an orange-coloured Commodore sedan which was parked on the eastern gravel shoulder of Reservoir Road, Sunbury, the vehicle then facing southeast. At that point, Reservoir Road runs northwest-southeast, parallel and next to the Calder Freeway. About 11.40 pm on that cold, clear night, there was no street lighting, the road surface consisted of a relatively narrow band of bitumen bordered by sloping gravel shoulders of approximately equal width to the bitumen section.
9At around 11.38 that night, a police divisional van – the vehicle being a Holden Colorado, which from the photos is a form of SUV – was driven by Officer Brown who was accompanied by Police Officer Rigas and that vehicle drove towards the Commodore from the southeast. The evidence, and in particular the video footage from one of the police officer’s body cameras, shows that as the police vehicle approached, the Commodore’s headlights were not on.
10As the police vehicle approached, the police officers ran registration checks on the computer systems available to them within the police vehicle, and the police vehicle came to a stop about a car length in front of the Commodore and slightly offset from it, so that the passenger side wheels of the divisional van were a foot or two on to the bitumen. Effectively, the two vehicles were pointing at each other. By this time, the driver, Officer Brown, had turned on the police divisional van’s high beams, the LED light bar mounted on its bumper bar, and what he described as its takedown lights,[1] which illuminate a wide area in front of and around the vehicle.
[1]Located “on the top of the van, that face outwards and behind the vehicle” – Senior Constable Rohan Brown at T103.
11The body camera footage in evidence shows that these very bright lights were directed almost straight at the front of the Commodore.
12What happened next happened very quickly. The lights on the Commodore are seen to be turned on and, as both the police officers are alighting from the police vehicle, the Commodore drives past the driver’s side of the police vehicle and, in doing so, collided with; very likely, part of the door, with Officer Brown (causing him serious injury to his legs) and with the rear driver’s side wheel and tyre, and the guard above it, on the driver’s side of the police vehicle. The Commodore then fled the scene.
13When arraigned in the presence of the jury panel, the accused pleaded guilty to the charge of driving in a manner dangerous causing serious injury to Officer Brown – Charge 6 on the indictment.
14In this trial – and we are now in Day 4 – and as has been plain to the parties for some time, the issue raised by the defence response to Charges 1 and 2 is whether the Crown can prove beyond reasonable doubt that the accused knew or was reckless as to whether the person – the injured Officer Brown – was an emergency worker or knew or was reckless as to whether the police vehicle was an emergency vehicle.
15It has long – since at least the committal, if not since the accused was first interviewed – been apparent that the defence to the element of knowledge or recklessness of the charges is that the accused man could not see past the very bright lights that shone upon the car he was in, when he drove off. As I have already stated, the evidence is that the police vehicle had the headlights on high beam, and the bumper or grill-mounted light bar and takedown lights directed at the accused’s vehicle from close distance. The defence is that he did not know and was not reckless as to the probability that behind all these lights were a police vehicle and police officers. And this in a case where it is common ground that the red and blue lights on the police vehicle were never activated, nor was a siren ever sounded.
16Before the case was opened to the jury, in pre-trial discussions, counsel for the Director confirmed that the issue in the trial was the mental element of knowledge or recklessness in relation to Charges 1 and 2.[2] At this stage of the trial, the Crown is close to closing its case and, as has been apparent from the cross-examination, the whole defence to these charges is that because of the circumstances and the bright lights – the circumstances including condensation within the Commodore – the jury could not be satisfied beyond reasonable doubt that the accused knew or was reckless as to whether the officers or the vehicle were relevantly emergency workers or emergency vehicles.
[2]T24
17On the third day of the trial, counsel for the Director informed the court[3] that, in effect, the jury should be instructed that the state of the lighting, the accused’s actual knowledge, and the accused’s actual belief in probabilities, were wholly irrelevant to the requirement in, for example, 317AE(1)(b), that he knew or was reckless as to whether. And this was so because of the operation of ss(2).
[3]T263
18Candidly and properly, counsel for the Director confirmed that he had not even thought of this way of putting the Crown case when he opened it to the jury, and that he had only raised the matter with counsel for the accused on that day. In that circumstance, with the empanelled jury waiting in the jury room now, and important evidence yet to be called, counsel for the accused asked that I rule immediately on whether the defence upon which the whole trial has been conducted should, in effect, be taken away from the jury before we proceed further.
19In those circumstances, this brief ruling concerns the construction and operation of ss(2) of 317AE and of ss(3) of 317AG, in particular, whether the expression appearing in each – namely “taken to know a person is an emergency worker” – as required in 317AE – or “taken to know a vehicle is an emergency vehicle” in 317AG creates a situation akin to strict liability, or deems, in the circumstances prescribed, the mental element elsewhere in these provisions described “knows or is reckless as to whether” to be made out without further proof, and more importantly, to be incapable of rebuttal by evidence.
20In the course of discussions, I was informed that these provisions were enacted in 2017 and inserted into the Crimes Act by Act 65 of 2017. Counsel for the Director submitted that if any of the ss(2) circumstances is proved, knowledge on the part of the accused – that is, knowledge that the person or, relevantly, the vehicle, is an emergency worker or vehicle, is established and is established regardless of whether the accused knew of any of the ss(2) circumstances. So that, as the submission went, the mental element would be satisfied by proof of, say, only ss2(b)(iii), sounding an alarm, even in a case where it was proved that the person charged was completely deaf, or it would be satisfied by proof only of the bearing of livery or insignia ss(2)(b)(i), even in circumstances where the emergency vehicle was hidden from view.
21In short, the submission was that the effect of ss(2) contended for by the prosecution reflected parliament’s intention to deem an offence to occur, even if there be proof of innocence of the mental element.
22Counsel for the Director referred me to the explanatory memorandum.[4] It states relevantly, “New section 317AE(2) provides for situations where a person can be taken to know that the other person is an emergency worker or a custodial officer. The purpose of this section is to provide for specific situations where it is (my emphasis), reasonable to infer that a person recognises that the other person is an emergency worker, or a custodial officer”.
[4]Explanatory Memorandum, Crimes Legislation Amendment (Protection of Emergency Workers and Others) Bill 2017 (Vic)
23The phrase, “reasonable to infer that a person recognises”, is repeated in the explanatory memorandum in relation to both 317AC(2) and 317AG(3). The second reading speech[5] by the Minister for Police, makes no reference to concepts of strict liability, or to deemed knowledge.
[5]Hansard 2 November 2017, p 3667
24Counsel for the Director allowed in the course of submissions that ss(2)(a) and (2)(c) both deal with circumstances that are actually perceived by an accused person.
25So, (2)(a) deals with “has identified themselves”, which can have no sensible operation (it was agreed) unless that identification is made to the person “taken to know”. And ss(2)(c) deals with matters that are reasonably apparent. Again, sensibly, this is necessarily a reference to the circumstances, the person taken to know, has before them at the relevant time.
26In contrast, counsel for the Director submitted that sub-paragraph (b) creates by its terms a non-rebuttable presumption that the mental element is proved. And submitted that this is so even in the face of the proved fact that the circumstances there listed in ss(b)(i), (ii), and (iii), could not have been perceived by the person who is taken to know.
27In my view to construe the section as creating, in effect, a form of strict liability for an offence that is punishable (and must in many circumstances be punished) by a term of imprisonment,[6] even where the relevant knowledge or recklessness is disproved, would require the clearest statement in the terms of the statute, and one might expect, in the secondary materials.
[6]By reference to its interaction with provisions of the Sentencing Act.
28In my view, what the prosecution seek to do is to have the jury instructed that they can conclude a state of knowledge of the accused without ever establishing that the state of affairs upon which that conclusion is based was ever witnessed, perceived, or understood by the accused. Here, the explanatory memorandum refers only to situations where it is reasonable to infer that a person recognises. In my view, it refers necessarily to circumstances of which the person is relevantly aware.
29The memorandum nowhere suggests that the offence is taken to be proved, even if it is not reasonable to infer because the person did not know of the relevant circumstance from which the section would have him taken to know. As I have mentioned, the second reading speech nowhere suggests that anything approaching deemed knowledge or strict liability was intended by the amendments to which the speech was directed. “Taken to know”, I was informed, is not an expression used elsewhere in criminal legislation, that either counsel could find.
30“Taken to know” stands in contrast to other provisions that do create close to strict liability situations – such as s5 of the Drugs, Poisons and Controlled Substances Act, and it stands in contrast to provisions which specify that “it is not a defence” to have an honest and reasonable belief about a state of affairs, for example, 48B and 49ZC of the Crimes Act. In my view, “taken to know”, can be given sensible operation in ss(2), if it is read as operating as proof of knowledge for the purposes of ss(1)(b) if the specified circumstances were apparent to the person who is taken to know, and not otherwise.
31In my view, much clearer words would be required in the legislation to give it the effect for which the prosecution contends, especially where the construction contended for is nowhere described in the secondary materials and has, as I was informed, never been used in any Act in relation to any other offence of any description.
32So my ruling is that the provisions of (2)(b)(i), (ii), and (iii) only operate where the person “taken to know” is aware of the circumstances there laid out, and does not operate in circumstances where the person taken to know was not aware of those circumstances.
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