Director of Public Prosecutions v Spong
[2018] ACTCA 37
•6 September 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Director of Public Prosecutions v Spong |
Citation: | [2018] ACTCA 37 |
Hearing Date: | 13 August 2018 |
ReasonsDate: | 6 September 2018 |
Before: | Murrell CJ, Mossop and Wigney JJ |
Decision: | On the trial of a culpable driving offence under s 29 of the Crimes Act 1900 (ACT) that involves negligence, the trial judge is neither required nor entitled to direct the jury that the driving must “involve a high risk that death or serious injury would follow from the relevant conduct”. |
Catchwords: | CRIMINAL LAW – DIRECTIONS TO JURY – culpable driving involving negligence – section 29 of the Crimes Act 1900 (ACT) – whether the accused’s driving must “involve a high risk that death or serious injury would follow from the relevant conduct” CRIMINAL LAW – REFERENCE APPEAL – statutory interpretation – whether ACT and Victorian provisions are substantially identical – construction of s 29 of the Crimes Act 1900 (ACT) – construction of s 318 of the Crimes Act 1958 (Vic) – where the wording of the provisions are identical – where the context and purpose differ – whether Victorian Court of Appeal authorities should be followed |
Legislation Cited: | Crimes (Amendment) Ordinance (No 2) 1990 (ACT) s 47 Crimes (Dangerous Driving) Act 2004 (Vic) s 318(2A) Supreme Court Act1933 (ACT) s 37S |
Cases Cited: | Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 DPP (NSW) v Yeo [2008] NSWSC 953; 188 A Crim R 82 Wilkins v Hague [2011] ACTSC 189; 258 FLR 355 |
Parties: | ACT Director of Public Prosecutions (Applicant) Alister Peter Spong (Interested Party) |
Representation: | Counsel Ms M Jones (Applicant) Mr S Whybrow (Interested Party) |
| Solicitors ACT Director of Public Prosecutions (Applicant) ACT Director of Public Prosecutions (Interested Party) | |
File Number: | ACTCA 26 of 2018 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Loukas-Karlsson J Date of Decision: 13 April 2018 Case Title: R v Spong Citation: [2018] ACTSC 129 Court File Number: SCC 179 of 2017 |
THE COURT:
The question of law
The Court is asked whether, on the trial of a culpable driving offence that involves negligence, the judge is required or entitled to direct the jury that the driving must “[involve] a high risk that death or serious injury would follow from the relevant conduct”: R v Spong [2018] ACTSC 129 at [48] citing Priest JA in Bouch v The Queen [2017] VSCA 861 (Bouch) at [139].
A jury found that the interested party was not guilty of the offence of causing the death of another person by the culpable (negligent) driving of a motor vehicle, contrary to s 29(2) of the Crimes Act 1900 (ACT) (ACT Crimes Act).
The trial judge decided that, in relation to the element of negligence, the jury should be directed that:
A person drives negligently for the purpose of the offence of culpable driving causing death, if that 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. Gross is an ordinary English word that should be given its ordinary meaning. The required negligence must be of a high order involving a great falling short of the standard of care that a reasonable person would have exercised in all the circumstances and involving a high risk of death or serious injury would follow from the relevant conduct.
(Emphasis added)
In Bouch, the Victorian Court of Appeal had considered a similar statutory provision and observed that the italicised passage was necessary. Applying the rule of comity referred to in Fernando v Commissioner of Police (1995) 36 NSWLR 567; 78 A Crim R 64 (Fernando) at 589–590, the trial judge decided that it should be included in her jury directions: Spong at [33]–[41].
Pursuant to s 37S(2) of the Supreme Court Act1933 (ACT) (SCA), the Director of Public Prosecutions (DPP) brought a reference appeal.
The DPP submitted that:
(a)To prove the element of negligent driving in an offence of culpable driving by negligence, the prosecution must prove that the driving involved an unjustifiable and gross departure from the proper standard of care but need not prove anything concerning consequences or advertence to consequences.
(b)The Victorian Court of Appeal’s decisions to the contrary in R v De’Zilwa [2002] VSCA 158; 5 VR 408 (De’Zilwa) and Bouch should be distinguished on the basis of statutory differences between the Crimes Act 1958 (Vic) (Victorian Crimes Act) and the ACT Crimes Act.
(c)Alternatively, the Victorian decisions are plainly wrong and should not be followed in the ACT.
The question is appropriate for a reference appeal
Section 37S of the SCA provides that, on the application of the DPP (among others) the Court of Appeal may hear and decide any question of law arising at or in relation to proceedings. On such an appeal, an interested party (including the accused) may be heard. A decision on a reference appeal does not affect the verdict at trial: s 37S(6) SCA.
Considerations that may be relevant to deciding whether to hear a reference appeal were canvassed in DPP v Booth [2018] ACTCA 8 (Booth) at [9]–[11].
This appeal has been brought for the purpose for which reference appeals are designed—to provide guidance on the correct application of the law in the future: Booth at [8]. It will enable this Court to determine whether, for reasons of comity or otherwise, the directions endorsed by the Victorian Court of Appeal in Bouch should be applied in this jurisdiction. It will also resolve any conflict between the trial judge’s decision in Spong and the decision of Refshauge J in R v Wolter (No 2) [2015] ACTSC 277; 302 FLR 1 (Wolter) at [31].
The interested party agreed that the subject matter of the proposed reference appeal was important and suitable for determination by such an appeal.
We agree. Indeed, the reference appeal was expedited because several culpable driving trials are listed to proceed in the near future.
Section 29 of the ACT Crimes Act
Section 29 of the ACT Crimes Act provides:
(2) A person who, by the culpable driving of a motor vehicle, causes the death of another person is guilty of an offence punishable, on conviction, by imprisonment for 14 years.
…
(4) A person who, by the culpable driving of motor vehicle, causes grievous bodily harm to another person is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
…
(6) For this section, a person shall be taken to drive a motor vehicle culpably if the person drives the vehicle—
(a) negligently; or
(b) while under the influence of alcohol, or a drug, to such an extent as to be incapable of having proper control of the vehicle.
(7) For this section, 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.
(8) An information or indictment for an offence against subsection (2) or (4) shall specify the nature of the culpability, within the meaning of subsection (6) that is alleged.
(10) Nothing in this section affects—
(a) the liability of a person to be convicted of murder or manslaughter or any other offence; or
(b) the punishment that may be imposed for such an offence.
Facts
On the opening day of the 2017 Summernats Festival at Watson, the interested party drove his restored 1940s flatbed utility truck around the Festival “cruise route” at a speed no greater than 20 km/h. Subject to irrelevant exceptions, the usual road rules applied to driving on the “cruise route” during the Summernats Festival.
There were five passengers on the utility tray, including the deceased. The deceased was situated near the rear of the tray. There were no sides to the tray and nothing onto which passengers could hold. The tray was located close to the ground.
The interested party revved the engine and attempted to spin the rear wheels by engaging and then disengaging the clutch. He intended that the vehicle would remain stationary during the manoeuvre. However, the vehicle lurched forward. The deceased and another passenger fell from the tray. The deceased’s head struck the road surface, causing a traumatic brain injury from which he later died. The other passenger sustained insignificant injury.
Trial judge’s directions
At the trial, there was no issue that the interested party was the driver of the vehicle in question, or that his driving caused the death of the deceased. The only contentious element was whether the accused’s driving was culpable in that it was negligent within the meaning of s 29 of the ACT Crimes Act.
As to the element of negligence, the trial judge directed the jury:
On a charge of culpable driving, a person is only taken to have driven 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. …
That is, that the prosecution must satisfy you beyond reasonable doubt that [the driving of the interested party] fell so far short of the standard of care a reasonable person would have exercised and involved such a high risk of death or serious injury, resulting from his conduct, that it constitutes gross negligence.
(Emphasis added)
After referring to the evidence, in relation to standard of care her Honour said:
Now this is an objective test. That means that the prosecution does not need to establish that [the interested party] intended to cause death or really serious injury, or that he realised that his conduct was negligent. What matters, is what a reasonable person, in his situation, would have known and done. …
For this element to be met, you must find that the reasonable person in the [interested party’s] situation would have realised that his driving created a high risk of death or really serious injury beyond a reasonable doubt. In making your determination, you should consider the reasonable person to be the same age as [the interested party] and to have the specialised knowledge of the vehicle that [the interested party] had, and to be of ordinary strength of mind.
(Emphasis added)
In the last paragraph set out in [18], the trial judge added to the De’Zilwa/ Bouch expression “[the conduct must] involve such a high risk of death or serious injury”, by saying “the reasonable person in the [interested party’s] situation would have realised that his driving created a high risk of death or really serious injury” (emphasis added). On the appeal, there was limited reference to this additional matter of advertence to consequences and we merely note it.
NSW and Victorian provisions guided the ACT provision
1963—The first ACT provision concerning culpable driving follows NSW
The offence of culpable driving was inserted into the ACT Crimes Act by the Crimes Ordinance 1963 (No 11) (ACT), which introduced s 52A. Section 52A of the ACT Crimes Act was in similar terms to s 52A of the Crimes Act 1900 (NSW) (NSW Crimes Act). Both s 52A provisions created offences of causing death and grievous bodily harm through impact with a motor vehicle driven by a person who was under the influence of intoxicating liquor or a drug, or who was driving at a speed or in a manner dangerous to the public.
The ACT provision was introduced because of the perception that juries were reluctant to convict of manslaughter in cases where death was caused by negligent or drunken driving. At that time, the maximum penalty for manslaughter was penal servitude for life.
When introduced, s 52A of the ACT Crimes Act carried a maximum penalty of five years’ imprisonment in the case of culpable driving causing death, and three years’ imprisonment in the case of culpable driving causing grievous bodily harm.
Section 52A(6) of the ACT Crimes Act provided that, upon the trial of a person for murder or manslaughter in connection with the driving of a motor vehicle, an alternative verdict was available under s 52A.
1958, 1967, 2004 and 2008—evolution of s 318 of the Victorian Crimes Act
When first enacted, s 318(2) of the Victorian Crimes Act provided that, where a person was acquitted of manslaughter arising out of the driving of a motor car, the person could be convicted of the misdemeanour of driving recklessly or at a speed or in a manner dangerous to the public—an offence that carried a maximum penalty of two years’ imprisonment and/or a fine of not more than one hundred pounds.
In 1967, s 3 of the Crimes (Driving Offences) Act 1967 (Vic) brought fundamental change by introducing new s 318(1) offence of culpable driving causing death, which carried a maximum penalty of seven years’ imprisonment. Section 318 created no offence of culpable driving causing grievous bodily harm. Section 318(2) provided:
For the purposes of sub-section (1) a person drives a motor car culpably if he drives the motor car—
(a) recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving; or
(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; or
(c)whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor car; or
(d) whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor car.
In 2004, s 318(2A) was introduced into the Victorian Crimes Act by the Crimes (Dangerous Driving) Act 2004 (Vic). Section 318(2A) clarified that, in relation to culpable driving by negligence, fatigue may suffice.
By the same amending Act, a new s 319 was inserted into the Victorian Crimes Act, creating the offence of causing death or serious injury by driving at a speed or in a manner dangerous to the public.
As a consequence of 2008 amendments, s 319(1) of the Victorian Crimes Act now deals with the offence of causing death by driving at a speed or in a manner dangerous to the public (which carries a maximum penalty of 10 years’ imprisonment), and s 319(1A) deals with the offence of causing serious injury by driving at a speed or in a manner dangerous to the public (which carries a maximum penalty of five years’ imprisonment).
1979—The ACT follows Victoria
In 1979, s 52A of the ACT Crimes Act was repealed and replaced.
The amendment was explained by the need to ensure that the provision covered passengers within as well as outside the relevant vehicle.
However, the amendments also effected other important changes, which appeared to have been modelled on s 318 of the Victorian Crimes Act.
Section 52A(2) criminalised culpable driving causing death, specifying a maximum penalty of five years’ imprisonment. Section 52A(3) criminalised culpable driving causing grievous bodily harm, specifying a maximum penalty of three years’ imprisonment. Section 52A(4) provided:
(4) For the purposes of sub-sections (2) and (3), a person drives a motor vehicle culpably if he drives the motor vehicle—
(a) recklessly;
(b) negligently;
(c)while under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle; or
(d)while under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.
…
(6) For the purposes of this section, a person drives a motor vehicle recklessly if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving.
(7) For the purposes of this section, a person drives a motor vehicle negligently 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.
…
(9) Nothing in this section affects—
(a) the liability of a person to be convicted of an offence of murder or manslaughter or any other offence; or
(b) the punishment that may be imposed for such an offence.
…
(12) Upon the trial of a person charged with an offence of murder or manslaughter or an offence against section 53 or 54 of this Act, being an offence arising out of the driving by that person of a motor vehicle, the jury may, if it is satisfied that the person is guilty of an offence against this section, find the person not guilty of the offence with which he is charged but guilty of an offence against sub-section (2) or (3), as the case may be, of this section.
Section 53 of the ACT Crimes Act dealt with injuries caused by furious driving and s 54 dealt with causing grievous bodily harm by an unlawful or negligent act or omission. Curiously, in each case the maximum penalty was two years’ imprisonment, i.e. a lower penalty than that prescribed for the alternative offence under s 52A.
1990—The ACT removes culpable driving by recklessness
34. In 1990, pt III of the ACT Crimes Act was repealed and a new pt III was substituted, dealing with offences against the person: Crimes (Amendment) Ordinance (No 2) 1990 (ACT) (1990 Ordinance). The offence of culpable driving was retained in s 29 of pt III, but the provisions concerning culpable driving by recklessness were removed.
Relevantly, s 29 provided:
(2) A person who, by the culpable driving of a motor vehicle, causes the death of another person is guilty of an offence punishable, on conviction, by imprisonment for 7 years.
(3) A person who, by the culpable driving of a motor vehicle, causes grievous bodily harm to another person is guilty of an offence punishable, on conviction, by imprisonment for 4 years.
(4)For the purposes of this section, a person shall be taken to drive a motor vehicle culpably if the person drives the vehicle—
(a) negligently; or
(b)while under the influence of alcohol, or a drug, to such an extent as to be incapable of having proper control of the vehicle.
(5) For the purposes of this section, 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 which a reasonable person would have observed in all the circumstances of the case.
Addressing the removal of the provisions concerning culpable driving by recklessness, the explanatory statement said:
The provisions of former section 52A are amended by omission of “recklessly” wherever occurring, since “negligently” as defined in section 52A includes conduct that would be reckless and retention of “recklessly” in the section could cause confusion.
The explanatory statement also referred to the increase in penalties, from five to seven years’ imprisonment in the case of driving causing death and from three to four years’ imprisonment in the case of driving causing grievous bodily harm.
Pursuant to s 47 of the 1990 Ordinance and the associated table of alternative offences (now s 49 of the ACT Crimes Act and the associated table), the verdict of culpable driving causing death was retained as an alternative verdict for manslaughter. The verdict of culpable driving causing grievous bodily harm was also an alternative to recklessly inflicting grievous bodily harm.
Other than by way of increasing penalties, since 1990 there have been no relevant amendments to s 29 of the ACT Crimes Act.
Currently, the maximum penalty for culpable driving causing death is 14 years’ imprisonment or 16 years’ imprisonment for an offence against a pregnant woman. These penalties can be contrasted with those for manslaughter; manslaughter carries a maximum penalty of 20 years’ imprisonment or 28 years’ imprisonment if committed against a pregnant woman.
The verdict of culpable driving causing grievous bodily harm is available as an alternative verdict to the s 20 offence of recklessly inflicting grievous bodily harm, which carries a maximum penalty of 13 years’ imprisonment (or 15 years’ imprisonment if committed against a pregnant woman). The maximum penalty for culpable driving causing grievous bodily harm is 10 years’ imprisonment (or 12 years’ imprisonment for an offence against a pregnant woman).
The Victorian authorities
In R v Horvath [1972] VR 533 (Horvath) at 539, the Victorian Court of Appeal referred to the proper form of direction to be given to a jury in relation to s 318(2)(b) of the Victorian Crimes Act, saying:
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 … In particular, we would say that … 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.
This passage was approved in R v Stephenson [1976] VR 376 (Stephenson) at 382, in the context of discussing whether it was appropriate to utilise particular colourful adjectives to explain “gross” negligence. The Court of Appeal agreed with the view expressed in Horvath that the words prescribed by the legislature needed no further explanation to make their meaning apparent.
In Nydam v The Queen [1977] VR 430 (Nydam) at 445, the Victorian Court of Appeal formulated the well-known test for manslaughter by negligence, saying:
In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.
(Emphasis added)
For offences of manslaughter, this test was approved in Patel v The Queen [2012] HCA 29; 247 CLR 531 at [18].
We note that the Nydam test of criminal negligence for manslaughter addresses both conduct and likely consequences: it entails both “a great falling short of the standard of care which a reasonable man would have exercised” and “a high risk that death or grievous bodily harm would follow”: at 445. Both requirements are linked to the expression “merit criminal punishment”.
In R v Shields [1981] VR 717 at 724 the Victorian Court of Appeal observed that, where an accused was charged with both manslaughter and culpable driving by negligence, it was confusing to direct the jury that different definitions of negligence applied to the offences and, in such circumstances, the manslaughter direction could follow the culpable driving direction on negligence that had been approved in Horvath.
De’Zilwa was a watershed case; the Victorian Court of Appeal (Charles JA with whom Ormiston JA and O’Brien AJA agreed) overruled Horvath. Charles JA acknowledged that Horvath and subsequent cases had established that, when directing a jury as to the elements of a s 318(2)(b) offence, the trial judge should confine themselves to the words of the provision. At [43], his Honour went on:
When the [Horvath line of cases was] decided, the maximum imprisonment for manslaughter was 15 years, whereas for culpable driving it was seven years. The maximum term for culpable driving first became the same as for manslaughter when it was increased to 15 years in 1992. In 1997 the maximum term for both was increased to 20 years. In recent years judges of this court have on numerous occasions stated that culpable driving is a species of involuntary manslaughter, and is punishable as such, emphasising that the gross departure from the standard of reasonable care of which the section speaks is the equivalent of criminal negligence sufficient to support the crime of manslaughter.
(Emphasis added, citations omitted)
After discussing the difficulties associated with the word “gross”, commenting that juries should be given more assistance and noting the Nydam direction relating to manslaughter by criminal negligence, at [46] his Honour continued:
In my opinion where in future a person is charged with culpable driving under s 318(2)(b), the judge should direct the jury that the jury are required to find that the driving of the accused involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, and which involved such a high risk that death or serious injury would follow, that the driving causing death merited criminal punishment.
(Emphasis added)
It would appear that the bases for overruling Horvath were that the offence of culpable driving causing death by negligence carried the same maximum penalty as the offence of manslaughter by negligence and that the former provision was properly characterised as a variant of the latter.
In passing, we observe that King v The Queen [2012] HCA 24; 245 CLR 588 (King) was an appeal to the High Court that, among other things, was concerned with the propriety of a direction that, to establish an offence against s 319 (see [27] and [28] above), the manner of driving must be such that it “merits criminal punishment” (following the Nydam direction for manslaughter). The High Court decided that such a direction would be erroneous. At [38], the plurality (French CJ, Crennan and Keifel JJ) observed:
The offence created by s 319 nevertheless takes its place in a coherent hierarchy of offences relating to death or serious injury arising out of motor vehicle accidents. It is not necessary to that coherence that the terms of the section be embellished by reading into them a requirement for proof of some species of criminal negligence.
Of further relevance to the question with which we are dealing, in King the Victorian Court of Appeal had observed that, under s 319, the manner of driving must create “a considerable risk of serious injury or death to members of the public”. But, in the High Court, the plurality (at [45]) questioned the transposition of the Nydam manslaughter direction to the offence of culpable driving causing death. More pointedly, at [74], Bell J observed that proof that an accused’s manner of driving created a “considerable risk of serious injury or death to members of public” was not an element of the s 319 offence of dangerous driving causing death.
In Bouch, the Victorian Court of Appeal (Priest JA, Redlich and Weinberg JJA agreeing, Whelan and Ferguson JJA agreeing in a separate judgment) determined that, in relation to a charge of culpable driving, it was a misdirection to say that the jury must be satisfied that the driving “merited criminal punishment”. Significantly, each member of the bench also agreed (obiter) that, otherwise in relation to a culpable driving charge, the jury should be directed as stated by Charles JA in De’Zilwa.
The Court of Appeal did not give detailed consideration to that aspect of the De’Zilwa direction with which we are concerned. Nevertheless, at [139], Priest JA expressed an opinion about how juries should be directed in relation to charges under s 318(2)(b). Following De’Zilwa, his Honour confirmed that such a direction should incorporate the requirement that the conduct involved “a high risk that death or serious injury would follow from the relevant conduct”.
The ACT authorities
In R v Antoniazzo [2010] ACTSC 36; 55 MVR 261 the accused was tried by a judge alone for the offence of manslaughter and, alternatively, culpable driving causing death by negligence. Gray J accepted that he should direct himself in accordance with De’Zilwa. However, the accused was acquitted on a narrower basis; his Honour was not satisfied that the driving departed from the standard of care that a reasonable person would have exercised.
In Wolter, Refshauge J declined to direct the jury in accordance with De’Zilwa in relation to a charge of culpable driving by negligence under ss 29(2) and (7) of the ACT Crimes Act.
First, his Honour distinguished De’Zilwa on the basis that, in De’Zilwa, the Victorian Court of Appeal had been persuaded to apply the Nydam direction because of the similarity in the penalties applicable to offences of manslaughter and culpable driving causing death and, in the ACT, the penalties for manslaughter and culpable driving causing death were different. Second, his Honour observed that, in King, the plurality and Bell J had impliedly disapproved of the approach taken in De’Zilwa. Finally, his Honour noted the confusion that might arise if a trial judge gave a De’Zilwa direction about the element of negligence applicable to the offence of culpable driving in circumstances where the accused had pleaded guilty to the lesser charge of causing grievous bodily harm by unlawful or negligent act (in relation to which a De’Zilwa direction was not appropriate).
Consequently, his Honour directed the jury that:
[Y]ou must find that [the driving of the accused] involves such a great falling short of the standard of care which a reasonable person would exercise in the circumstances as to amount to unjustifiable or gross negligence. That might be called a glaring or flagrant breach of the standards required of a careful driver.
It’s the sort of driving that, if you saw it, you would condemn it out of hand. You would say that it’s not an acceptable risk of the road. It’s not the sort of thing that you recognise in yourself and forgive in others. It’s outrageous. It’s exposing other people on the road to a risk which is greater than the law can categorise as merely driving carelessly. It is, therefore, an unjustifiable and gross breach of the standards required of a careful driver.
What is the meaning of negligence in s 29 of the ACT Crimes Act?
The key principles of statutory interpretation are found in pt 14.2 of the Legislation Act 2001 (ACT) (Legislation Act). The interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation: s 139(1). The provisions of an Act must be read in the context of the Act as a whole: s 140.
In working out the meaning of an Act, material not forming part of the Act may be considered: s 141(1). An explanatory statement may be taken into account: s 142(1) and Table 142 item 4.However, in deciding whether such material should be considered and the weight to be given to the material, consideration must be given to the desirability of being able to rely on the ordinary meaning of the Act, having regard to its purpose and the provisions of the Act read in the context of the Act as a whole: s 141(2).
Confining our consideration to the terms of s 29 itself, the plain words of s 29(7) appear to fully define “negligently” for the purposes of s 29 culpable driving offences. We respectfully agree with the Victorian Court of Appeal’s observation in Horvath (at 539) about the legislation that was under consideration in that case; where a statutory test of negligence is clearly articulated, it is “both unnecessary and undesirable” to complicate that test.
When the offences under s 29 are viewed in the context of the ACT Crimes Act as a whole, the words used in s 29(7) are apposite to achieve the apparent purpose of s 29, which is to create an offence of causing death by driving that is less serious than the driving required to establish the offence of manslaughter and an offence of causing grievous bodily harm by driving that is less serious than the driving required to establish the offence of recklessly causing grievous bodily harm.
First, looking at the broader legislative environment, it can be seen that culpable driving by negligence is the middle offence in a three tier hierarchy of offences that applies to negligent driving causing personal injury. The lowest level offences are those of driving negligently causing death carrying a maximum penalty of 2 years’ imprisonment under s 6(1)(a) of the Road Transport (Safety and Management) Act 1999 (ACT) (RTSM Act), and driving negligently causing grievous bodily harm carrying a maximum penalty of one year imprisonment and/or 100 penalty units under s 6(1)(b). For such offences, the requisite negligence is a departure from the standard of care to be expected of the ordinary prudent driver in the circumstances: Wilkins v Hague [2011] ACTSC 189; 258 FLR 355 at [68], [82] referring to Johnson J in DPP (NSW) v Yeo [2008] NSWSC 953; 188 A Crim R 82 at [27].
Under ss 29(6)(a) and (7) the requisite negligence is substantially greater than bare negligence; it is negligence that involves a “gross degree” of departure from the appropriate standard of care. It is consistent with that approach that the level of negligence required to establish culpable driving is less than that required to establish the offences of manslaughter or recklessly causing grievous bodily harm
Second, the applicable penalties confirm these differences.
Third, where a person is charged with manslaughter by driving, the alterative verdict of culpable driving causing death is available under s 49. Similarly, where a person is charged with recklessly inflicting grievous bodily harm by driving, under s 49 an alternative verdict of culpable driving causing grievous bodily harm is available. The availability of alternative verdicts confirms that culpable driving is a lesser offence. It strongly suggests (if not demands) that the elements of the lesser offences set a lower threshold for criminality than do the elements of the greater offences.
The distinction between the degree of negligence required to prove manslaughter and that required to prove negligent culpable driving is confirmed by the legislative history.
As noted at [46] above, the Nydam test of criminal negligence for manslaughter has two aspects: “a great falling short of the standard of care which a reasonable man would have exercised” (very serious conduct) and “a high risk that death or grievous bodily harm would follow” (grave consequences).
Between 1979 and 1990, in the ACT culpable driving included both reckless driving and negligent driving. “Recklessly” was defined by reference to conscious and unjustifiable disregard of “a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result” from the driving, i.e. advertence to consequences. “Negligently” was defined by reference to the failure “unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances”, i.e. degree by which conduct deviated from the relevant standard of care. In 1990, the reference to “recklessness” was abandoned.
The 1990 amendments made it clear that, under s 52A (which became s 29) of the ACT Crimes Act, negligent culpable driving was to be determined by reference to the degree of departure from the required standard of care (the conduct), rather than by reference to advertence to the possible consequences of deviating from the required standard of care.
Comity does not require the ACT to follow Victoria
As the trial judge observed in this case, the ACT and Victorian culpable driving provisions define identically the expression “negligently”. The trial judge considered that she should follow the approach of the Victorian Court of Appeal in Bouch unless she was persuaded that the decision was “plainly wrong”.
However, the statutory contexts of the definitions are very different.
First, the Victorian provision covers only culpable driving causing death; it creates no offence of culpable driving causing grievous bodily harm. In Victoria, for many years the maximum penalty for culpable driving causing death has been the same as that for manslaughter. Consequently, in Victoria, culpable driving causing death has been seen as a species of manslaughter. As noted above, the decision in De’Zilwa turned on this consideration.
On the other hand, in the ACT the penalty for culpable driving causing death has always been significantly less than that for manslaughter by driving. Similarly, the maximum penalty for culpable driving causing grievous bodily harm has always been significantly less than that for recklessly inflicting grievous bodily harm.
Second, s 318(5) of the Victorian Crimes Act prohibits the charging of manslaughter and culpable driving in the same indictment. In contrast, s 29(10) of the ACT Crimes Act provides that nothing in s 29 affects the liability of a person to be convicted of manslaughter or any other offence. Section 49 and the associated table provide that culpable driving causing death is an alternative offence to manslaughter and culpable driving causing grievous bodily harm is an alternative offence to recklessly inflicting grievous bodily harm.
These two considerations emphasise that, in the ACT hierarchy of offences against the person caused by driving, culpable driving sits beneath manslaughter.
Third, in Victoria recklessness has been retained as a separate ground of culpability: s 318(2)(a). As discussed above, in 1990 recklessness was omitted from the ACT provision, which was thereafter focused on driving conduct rather than the possible consequences of such conduct.
Despite the fact that the ACT and Victorian culpable driving provisions identically define the expression “negligently”, the differences between the statutory contexts in which the words appear are such that it would be wrong to interpret the ACT provisions by reference to the Victorian authorities.
While the decision of the High Court in R v Falzon [2018] HCA 29 at [49] and the authorities there cited emphasise the need for intermediate appellate courts to follow the decisions of other intermediate appellate courts in relation to matters involving Commonwealth legislation, uniform legislative schemes and the common law, the position is not as clear in relation to similarly or identically worded State or territory legislation.
However, in this case, it is unnecessary to debate whether the “plainly wrong” test applies in such circumstances and, if so, the degree of legislative similarity that is required for the principle to apply: cf Tillman v Attorney General (NSW) [2007] NSWCA 327; 70 NSWLR 448. Suffice it to say that the differences between the ACT and Victorian legislative contexts are such that considerations of comity do not require that, when interpreting s 29 of the ACT Crimes Act, the ACT should follow the Victorian authorities.
Answer to question of law
On the trial of a culpable driving offence under s 29 of the ACT Crimes Act that involves negligence, the trial judge is neither required nor entitled to direct the jury that the driving must “involve a high risk that death or serious injury would follow from the relevant conduct”.
| I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Mossop and Justice Wigney. Associate: Date: |
3
11
10