Donovan v The State of Western Australia
[2017] WASCA 170
•15 SEPTEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DONOVAN -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 170
CORAM: MAZZA JA
BEECH JA
HALL J
HEARD: 21 AUGUST 2017
DELIVERED : 15 SEPTEMBER 2017
FILE NO/S: CACR 60 of 2016
CACR 36 of 2017
BETWEEN: MICHAEL ROBERT DONOVAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
Citation :THE STATE OF WESTERN AUSTRALIA -v- DONOVAN [2016] WADC 53
File No :IND 915 of 2014
Catchwords:
Criminal law - Criminal responsibility - Driver who suffered epileptic seizure caused accident resulting in death - Dangerous driving occasioning death - Whether person suffering epileptic seizure is 'driving' - Whether driving can be characterised as dangerous
Legislation:
Criminal Code (WA), s 23A, s 26, s 27
Road Traffic Act 1974 (WA), s 54, s 56, s 59
Result:
Appeal in CACR 60 of 2016 dismissed
Appeal in CACR 36 of 2017 upheld
Acquittals on account of unsoundness of mind on counts 2 and 3 quashed
Unqualified verdicts of acquittal on counts 2 and 3
Category: A
Representation:
Counsel:
Appellant: Mr P D Yovich SC
Respondent: Ms A L Forrester SC & Ms K C Cook
Solicitors:
Appellant: Oswald Legal Pty Ltd
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Hill v Baxter [1958] 1 QB 277
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
Kaighin v The Queen (1990) 1 WAR 390
Lodge v Magorian [2012] WASCA 90; (2012) 42 WAR 270
McBride v The Queen (1966) 115 CLR 44
McPherson v Lucas [2008] WASCA 56; (2008) 181 A Crim R 587
Peters v The State of Western Australia [No 2] [2013] WASCA 205
R v Banhelyi [2012] QCA 357
R v Batt [2005] QCA 444
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Mursic [1980] Qd R 482
The State of Western Australia v Donovan [2016] WADC 53
JUDGMENT OF THE COURT:
Introduction
The appellant was tried in the District Court before a judge alone on three charges: dangerous driving occasioning death, failing to ensure assistance, and failing to report an incident. The trial judge found the appellant not guilty of all three charges on the ground of unsoundness of mind. The appellant appeals against that finding in respect of each charge, contending that he should have been found not guilty on the basis that the State did not prove the elements of each offence, or, in relation to the second and third charges only, the evidence established a defence to each offence.
For the reasons that follow, we would uphold the appeal on the second and third charges, but would dismiss the appeal in relation to the charge of dangerous driving occasioning death.[1]
[1] Although at times referred to in these reasons as an appeal against conviction the appeal is in fact an appeal against acquittals on account of unsoundness of mind: s 25 Criminal Appeals Act 2004 (WA).
The charges
The charges were in the following terms:
1.On 7 January 2014 at Leederville, a motor vehicle, namely a Toyota Hilux utility registration number 1CQA735, driven by [the appellant] on a road, namely Mitchell Freeway, was involved in an incident occasioning the death of Jonathan Charles Murphy and that at the time of the incident [the appellant] drove the motor vehicle in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person.
2.On 7 January 2014 at Leederville, [the appellant], being the driver of a vehicle on a road, namely Mitchell Freeway, which was involved in an incident occasioning bodily harm to another person, failed to ensure that Jonathan Charles Murphy and Heather McKeegan received all the assistance, including medical aid, that was necessary and practicable in the circumstances, and that the incident occasioned death.
3.On 7 January 2014 at Leederville, [the appellant], being the driver of a motor vehicle on a road, namely Mitchell Freeway, was involved in an incident occasioning death to Jonathan Charles Murphy, failed to report the incident forthwith to the officer in charge of a police station.
The primary facts
The primary facts were, broadly speaking, not in dispute at trial. The defence consented to the tender of the entire prosecution brief and did not seek to cross‑examine any of the witnesses. The appellant did not give evidence, but adduced medical expert evidence which was not substantially disputed by the prosecution.
The judge summarised the facts as follows.[2]
[2] The State of Western Australia v Donovan [2016] WADC 53 [3] - [7] (primary reasons).
After finishing work on 7 January 2014, the appellant got into his white Toyota ute to drive home. The Hilux was in good mechanical condition, with the brakes functioning properly.[3] He took his usual route home, including travelling west on the Graham Farmer Freeway, turning north onto the Mitchell Freeway in the two lanes that join the Mitchell Freeway, and continuing north until turning off the freeway at the Cedric Street exit near Osborne Park. He drove home and parked his truck in the backyard. According to what he later told police, he was surprised to then observe some damage to the front of his vehicle. He wondered how and where it could have occurred.
[3] Primary reasons [10].
The answer to that is that between the time he merged onto Mitchell Freeway and then went left at the Cedric Street exit, the white Toyota ute had driven steadily in the far right-hand lane of Mitchell Freeway, at a speed of about 100 km per hour, 20 km per hour over the limit. The speed limit on Mitchell Freeway prior to the Leederville train station is 80 km per hour. Past the train station it changes to 100 km per hour.[4] In broad daylight the white Toyota ute overtook a motorcycle driven by Jonathan Charles Murphy and forced the motorcycle into the back of a third vehicle, a Subaru Outback, driven by Ms Heather McKeegan. The motorcycle was jammed between the two vehicles. After being dragged for some distance, Mr Murphy fell off and was killed.
[4] Primary reasons [12] ‑ [13].
The impact with Ms McKeegan's car forced it sideways, and it was propelled some distance by the white Toyota ute before it suddenly disengaged with the ute, veering to the left and then back again to the far right of the freeway. Ms McKeegan's vehicle spun in nearly a full circle before coming to rest. The white Toyota ute continued up the freeway for about another 800 m dragging the motorcycle beneath it, seemingly oblivious to what had occurred.
All of this time the white Toyota ute did not slow; there was no application of brakes. Instead, it continued to maintain its speed or accelerate.
When interviewed by the police the appellant said that he had no memory of any accident. While he remembered driving home, he had no memory of the time from the Graham Farmer Tunnel to taking the exit at Cedric Street.
Expert evidence
The primary judge's summary of the expert evidence included the following:
(1)A cranial MRI revealed a large arteriovenous malformation (AVM) in the appellant's left frontal lobe.[5]
(2)The presence of an AVM can cause a deficiency in the supply of blood to surrounding tissues, resulting in surrounding tissue death and subsequent scar tissue formation called gliosis. Gliotic tissue in the brain is highly epileptogenic, meaning it is a source of seizures. Seizures result from abnormal discharges of electrical impulses from the nerve cells.[6]
(3)The experts referred to the challenge of describing human consciousness. Each ascribed to it two components: the level of consciousness and its content. The level is represented in the continuum from coma to a state of being fully alert. The content focuses on the function or dysfunction of sensory motor memory and emotional systems. Considerable variety is possible in the manifestation of dysfunction and its relation to the level of consciousness.[7]
(4)Significantly, in the appellant's case, the AVM was present in the left anterior frontal lobe. The function of the frontal lobe includes supplying the ability to recognise future consequences resulting from current actions, to make choices between actions, and determine similarities and differences between things or events.[8]
(5)It was entirely plausible that someone experiencing a seizure of this kind could maintain a degree of control over a motor vehicle on a highway and collide with another vehicle while having no conscious awareness of doing so. A person may be able to function in an automatic way in some respects, retaining apparent consciousness and carrying out seemingly purposeful actions while having little or no conscious awareness.[9]
(6)The restoration of awareness following the seizure is a continuum and would be gradual.[10]
(7)Dr Ho's opinion was that at the time of the incident, the appellant was experiencing a cerebral incident that caused him to lose executive functions of cognition, decision‑making abilities and memory. Dr Granger similarly considered that the incidents were explained by a complex partial seizure. Professor Hankey also considered that the appellant's driving at the time of the incident was the consequence of an epileptic seizure resulting from the AVM. The primary judge accepted these opinions.[11]
[5] Primary reasons [76].
[6] Primary reasons [80] ‑ [81].
[7] Primary reasons [86] - [87].
[8] Primary reasons [88].
[9] Primary reasons [89], [93].
[10] Primary reasons [101].
[11] Primary reasons [94], [95], [98], [111].
It is convenient to outline the relevant statutory provisions before identifying the issues at trial and the primary judge's decision on those issues.
Statutory provisions
Road Traffic Act
Count 2 charged the appellant with an offence against s 54 of the Road Traffic Act 1974 (WA). That section provides, relevantly, as follows:
(1)If a vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person, the driver must stop immediately after the occurrence of the incident and for as long as is necessary to comply with subsections (2) and (6).
(2)If a vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person (a victim), the driver must ensure that each victim receives all the assistance, including medical aid, that is necessary and practicable in the circumstances.
(3)A person who contravenes subsection (1) or (2) commits a crime.
Penalty for this subsection: imprisonment for ‑
(a)20 years, if the incident occasioned death and, in any event, the court convicting the person must order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than 2 years;
(b)14 years, if the incident occasioned grievous bodily harm but not death and, in any event, the court convicting the person must order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than 2 years;
(c)10 years, in any other case and, in any event, the court convicting the person must order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than 12 months.
Summary conviction penalty in a case to which paragraph (c) applies: imprisonment for 3 years and, in any event, the court convicting the person must order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than 12 months.
[(4)deleted]
(5)It is a defence to a charge of an offence under subsection (3) for the accused to prove that the accused was not aware of the occurrence of the incident.
Count 3 charged the appellant with an offence against s 56, which provides:
(1)If a vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to the driver or another person, the driver must report the incident forthwith to ‑
(a)the officer in charge of a police station; or
(b)the Commissioner of Police in a manner approved by the Commissioner.
(2)If a person contravenes subsection (1) and the incident occasioned death or grievous bodily harm, the person commits a crime.
Penalty: imprisonment for 10 years and in any event the court convicting the person must order that the offender is disqualified from holding or obtaining a driver's licence for a period of not less than 12 months.
Summary conviction penalty: imprisonment for 12 months and in any event the court convicting the person must order that the offender is disqualified from holding or obtaining a driver's licence for a period of not less than 12 months.
(3)If a person contravenes subsection (1) and the incident did not occasion death or grievous bodily harm, the person commits an offence.
Penalty: imprisonment for 12 months and in any event the court convicting the person must order that the offender is disqualified from holding or obtaining a driver's licence for a period of not less than 12 months.
(4)If a vehicle driven by a person (the driver) is involved in an incident in which any property is damaged the driver must report the incident forthwith to ‑
(a)the officer in charge of a police station; or
(b)the Commissioner of Police in a manner approved by the Commissioner.
Penalty:
(a)for a first offence, a fine of 8 PU;
(b)for a subsequent offence, a fine of 16 PU.
(5)It is a defence to a charge of an offence under subsection (2), (3) or (4) for the accused to prove that ‑
(a)the accused could not comply with a requirement in the relevant provision because of an injury suffered by the accused in the incident; or
(b)a police officer attended at the scene of the incident and took the necessary particulars of the incident.
(6)It is a defence to a charge of an offence under subsection (4) for the accused to prove ‑
(a)that the accused had reasonable cause for believing that the total value of the damage did not exceed the amount prescribed for the purposes of this subsection; and
(b)that the owner, in each case, of any property damaged was present or represented at the place where and at the time when, or immediately after, the incident occurred.
Count 1 alleged an offence against s 59(1) of the Road Traffic Act. That section provides:
(1)If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of, or grievous bodily harm to, another person and the driver was, at the time of the incident, driving the motor vehicle ‑
(a)while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle; or
(ba)while under the influence of drugs to such an extent as to be incapable of having proper control of the vehicle; or
(bb)while under the influence of alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle; or
(b)in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person,
the driver commits a crime and is liable to the penalty in subsection (3).
Summary conviction penalty in a case in which the incident does not occasion the death of another person: imprisonment for 3 years or a fine of 720 PU and in any event the court convicting the person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than 2 years.
At the relevant time the definitions in s 5 of the Act stated that 'drive' includes:
(a)In relation to a vehicle, to have control over the steering, movement or propulsion of the vehicle …
The same section provided that 'driver' means any person driving a vehicle or animal.[12]
Criminal Code
[12] Section 5 has since been amended and the relevant definitions, which are in identical terms, now appear in s 4 of the Road Traffic (Administration) Act 2008 (WA).
The following provisions of ch V of the Criminal Code (WA) (the Code), applicable to all charges of any offence against the statute law of Western Australia,[13] were relevant.
[13] Criminal Code (WA) s 36.
23A.Unwilled acts and omissions
(1)This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.
(2)A person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will.
…
26.Presumption of sanity
Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.
27.Insanity
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
(2)A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.
The term mental impairment is defined in s 1 to mean intellectual disability, mental illness, brain damage or senility. Mental illness is defined to mean 'an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli'.
The issues at trial
At trial the defence did not challenge the primary facts established by the State case. Rather, the defence contended that:
(1)the effect of the expert evidence was that the appellant was, by reason of an epileptic seizure, in a state of automatism that left him unable to exercise conscious awareness over the control of his motor vehicle. Consequently, the proper conclusion was that he was not, or the State had not satisfied beyond reasonable doubt that he was, driving the vehicle; and
(2)further or in the alternative, given the expert evidence to the effect just summarised, it could not be said that the appellant's manner of driving was dangerous.[14]
[14] Primary reasons [117], [122]; ts 301, 316, 327, 331, 336.
The decision of the primary judge
The primary judge began consideration of the issues with the following observations as to the uncontested facts. The appellant was the only person in his vehicle. It was the appellant's hands on the wheel and foot on the accelerator as the vehicle ran down Mr Murphy on his motor cycle and collided with Ms McKeegan in her Subaru. The utility was travelling 20 km per hour over the speed limit. Its speed caused it to overtake and run down two vehicles, one after the other, travelling in the same lane, in the same direction, in good conditions, in broad daylight.[15] His Honour concluded that, presuming the appellant to be of sound mind at the time of these events, he was readily satisfied beyond reasonable doubt of the commission of the offences.
[15] Primary reasons [118] - [119].
The primary judge observed that the difficulty with the appellant's contentions was that the same evidence that tended to prove that the appellant was not able to exercise a conscious will over the control of his motor vehicle, also established that this was the result of a congenital malformation in his brain that produced an epileptic seizure. There was no evidence of any other cause for the appellant's inability to exercise a conscious will.[16]
[16] Primary reasons [124].
His Honour applied the approach stated by Mason CJ, Brennan and McHugh JJ in R v Falconer,[17] quoting passages from their Honours' reasons which we will set out later in these reasons.[18]
[17] R v Falconer [1990] HCA 49; (1990) 171 CLR 30.
[18] Falconer (44, 56).
The primary judge found, against the appellant's submissions, that the appellant's epileptic episode amounted to a mental disease or infirmity. His Honour found that although the epilepsy was transient, it could not be said to have been caused by trauma and was prone to recur.[19]
[19] Primary reasons [145] - [147].
The primary judge was satisfied beyond reasonable doubt of the guilt of the appellant, presuming him to be of sound mind.[20]
[20] Primary reasons [148].
His Honour was satisfied that at the time of the events the appellant was suffering an epileptic seizure with the consequences that he was not able to exercise a conscious will over his actions, and was in fact deprived of the capacity to understand what he was doing and to control his actions in a conscious sense.[21] The primary judge was fortified in that regard by the obvious lack of self‑preservation observable in what can be seen on the CCTV footage of the incident.[22]
[21] Primary reasons [149].
[22] Primary reasons [151].
His Honour concluded that the condition from which the appellant suffered was a mental impairment, being an underlying pathological infirmity of the mind.[23] Consequently, his Honour found the appellant not guilty of each offence on account of unsoundness of mind.
[23] Primary reasons [153].
Grounds of appeal
Initially, the appellant lodged an appeal against his conviction on count 1 only, being appeal CACR 60 of 2016. In the lead up to the hearing of the appeal, originally listed in February 2017, the respondent properly raised with counsel for the appellant the question of whether there might be an appeal in relation to the convictions on counts 2 and 3. As a result, by consent, the hearing of the appeal was adjourned to enable the appellant to lodge a further appeal against those convictions.
By appeal CACR 36 of 2017, the appellant appeals against his conviction on counts 2 and 3. Orders have been made granting leave to appeal,[24] and granting an extension of time within which to appeal.[25]
[24] Order of Mazza JA 11 March 2017.
[25] Order of Mazza JA 26 May 2017.
In CACR 60 of 2016, the appellant's grounds of appeal against his conviction on count 1 are as follows:
1.The trial judge made a wrong decision on a question of law in finding that the element of 'driving' was proved against the appellant.
Particulars
(a)The trial judge found that, at the time of the collision that caused the death of the deceased, the appellant lacked conscious awareness of what he was doing and that for that reason the acts or omissions that were the elements of the offence occurred independently of the exercise of his will.
(b)The finding that the appellant lacked conscious awareness of what he was doing should have led to a conclusion that the element of driving was not proved beyond reasonable doubt, and in turn to an unqualified acquittal.
2.The trial judge made made a wrong decision on a question of law in finding that the element of 'dangerousness' was proved against the appellant.
Particulars
(a)The trial judge failed to consider and apply the correct legal test in determining whether the driving of the appellant was dangerous.
(b)The finding that the appellant lacked conscious awareness of what he was doing should have led to a conclusion that the element of dangerousness was not made out as the appellant could not be found to be at fault at the time of the collision.
In CACR 36 of 2017, the grounds of appeal against the conviction on counts 2 and 3 are as follows:
1.The trial judge made a wrong decision on a question of law by finding that the element of 'driving' was proved against the appellant in relation to counts 2 and 3 on the indictment.
Particulars
(a)The trial judge found that, at the time of the collision that caused the death of the deceased, the appellant lacked conscious awareness of what he was doing and that for that reason the acts or omissions that are elements of the three offences occurred independently of the exercise of his will.
(b)The finding that the appellant lacked conscious awareness of what he was doing should have led to a conclusion that the element of driving was not proved beyond reasonable doubt, and in turn to an unqualified acquittal.
2.The trial judge made made a wrong decision on a question of law by finding that, because the appellant's lack of awareness that an accident had occurred was caused by a mental infirmity, the proper verdict on count 2 was one of not guilty on the grounds of unsoundness of mind.
Particulars
(a)Section 54(5) of the Road Traffic Act 1974 (WA) provided that it was a defence to the offence charged in count 2 of the indictment to prove that the appellant was not aware of the occurrence of the incident. .
(b)The trial judge's finding that the appellant lacked conscious -awareness of what he was doing should have led to a conclusion that this defence was made out, and in turn led to an unqualified acquittal.
3.There was a miscarriage of justice occasioned by the failure of the trial judge to determine whether the evidence proved on the balance of probabilities that the defence provided for by section 56(5)(b) of the Road Traffic Act 1974 (WA) was made out on the evidence.
It can be seen that ground 1 of each appeal is in the same terms. We begin with that ground.
Counts 1 - 3; ground 1 in each appeal: did the appellant 'drive'?
By ground 1 of each appeal, the appellant contends that on the facts found by the trial judge he was not driving.
The appellant does not challenge[26] the following findings of the primary judge:
(1)on the evidence, the only basis to question whether the appellant had capacity to control his actions lay in the evidence of epileptic seizure;[27]
(2)on the evidence, epilepsy is a pathological infirmity of the mind, falling within the definition of mental illness in s 1 of the Code, and thus constitutes a mental impairment within the meaning of s 27 of the Code;[28] and
(3)consequently, applying the reasoning in R v Falconer,[29] there was no room for any question of whether the appellant's acts were unwilled within the meaning of s 23A of the Code; the evidence relating to epilepsy engaged only s 27.[30]
[26] Appeal ts 6.
[27] Primary reasons [124].
[28] Primary reasons [124] ‑ [147].
[29] R v Falconer [1990] HCA 49; (1990) 171 CLR 30.
[30] There is Queensland authority to the same effect: R v Mursic [1980] Qd R 482, 488; R v Batt [2005] QCA 444 [9]; compare R v Banhelyi [2012] QCA 357 [10].
The following passages from Falconer,[31] applied by the trial judge, explain the approach that is to be taken and confirm the correctness of his Honour's approach:
[W]hat is the position if the accused chooses to raise an issue of automatism – that is, of an act done independently of the exercise of his will ‑ under the first limb of s 23 but fails or refuses to prove the cause of the automatism? It might be argued that, if it be not proved that unsoundness of mind caused or contributed to the automatism alleged, the verdict should be an outright acquittal. If this argument be valid, automatism caused or contributed to by unsoundness of mind entitles an accused to an outright acquittal provided the accused abstains from proving unsoundness of mind. If that were the position, procedural tactics would work substantive error. The solution lies in giving to s 26 its full effect: until unsoundness of mind be proved, it must be presumed for all purposes, including the finding of facts, that the accused was of sound mind when the act was done. In determining whether the prosecution has discharged an onus of proving any issue, the tribunal of fact must act upon the presumption that the accused is of sound mind unless and until the contrary is proved. Treating the accused as being of sound mind precludes the existence of automatism where the automatism could have been caused only by reason of unsoundness of mind or could not have existed but for unsoundness of mind. Thus s 26 precludes the hypothesis of automatism except for an automatism which, on the evidence, might have been caused exclusively by circumstances outside the operation of s 26. By operation of s 26, the jury is precluded from returning a verdict of acquittal under s 23 if the accused raises an issue of automatism which depends to some extent on unsoundness of mind. And, if an accused proves on the balance of probabilities that his alleged automatism was caused or contributed to by unsoundness of mind, a qualified verdict under s 653 must be returned.
…
… When an accused raises automatism and assigns some malfunction of the mind as its cause, he raises a defence of unsoundness of mind or insanity unless the malfunction of his mind was (1) transient (2) caused by trauma, whether physical or psychological, which the mind of an ordinary person would be likely not to have withstood and (3) not prone to recur. A malfunction of the mind other than a malfunction which satisfies those exempting qualifications amounts to a disease of the mind, or a mental disease or natural mental infirmity. As an accused bears no ultimate onus of proving that his act was not willed, in theory an accused may raise the issue of non-insane automatism on the evidence and claim to be acquitted outright unless the prosecution disproves the issue. But in practice an accused does not raise non-insane automatism by raising automatism based merely on mental malfunction. Prima facie, mental malfunction is the consequence of mental infirmity and, until it be proved that a particular instance of mental malfunction satisfied the exempting qualifications, mental malfunction must be treated as a consequence of mental infirmity.
It follows that, unless and until the automatism on which an accused relies is proved to be merely a transient mental malfunction of his otherwise sound mind caused by trauma and that the malfunction is not likely to recur, both s 26 of the Code and the common law preclude consideration of automatism for the purpose of determining whether the incriminated act was willed or voluntary.
[31] R v Falconer (44, 56).
The appellant submits that before consideration needed to be given to any excuse or defence such as under s 23A, it had to be proved beyond reasonable doubt that the appellant had done the acts relied on to establish the elements of the offences.[32] One of the elements of these offences was that the appellant was driving. Driving includes, relevantly, in relation to a vehicle, to have control over the steering, movement or propulsion of the vehicle. The appellant submits that if a person is not exercising conscious control over the movement of a vehicle, the person is not 'driving'.[33]
[32] Appellant's submissions [17], appeal ts 6, 14.
[33] Appellant's submissions [23], [26]; appeal ts 3, 5.
In the appellant's submission, in this context 'control' has both a physical element and a mental element, and the two elements must work together. There must be a mental command of the physical acts influencing the movement of the car.[34] Further, the appellant submits that the notion of fault inherent in the characterisation of driving as dangerous reinforces the need for an element of consciousness in any acts said to constitute driving. Otherwise, a characterisation of driving as dangerous 'makes no sense'.[35]
[34] Appeal ts 3, 12.
[35] Appeal ts 3, 4, 12.
We do not accept these submissions. The Road Traffic Act is to be construed in the known framework that the provisions of ch V of the Code regarding criminal responsibility apply to all offences against the statute law of Western Australia, unless a contrary intention is expressed or necessarily implied in the statute creating the offence. Chapter V includes (among other things) s 23A (unwilled acts), s 23B (events occurring by accident), s 24 (mistake of fact), s 25 (emergency) and s 27 (insanity). These provisions apply to an offence under s 59 and s 59A of the Road Traffic Act.[36]
[36] McPherson v Lucas [2008] WASCA 56; (2008) 181 A Crim R 587 [21], citing Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 and Kaighin v The Queen (1990) 1 WAR 390, 395; see also Lodge v Magorian [2012] WASCA 90; (2012) 42 WAR 270 [50].
When this is borne in mind, the need or justification asserted by the appellant for importing a mental element into 'drive' and 'control' in the Road Traffic Act falls away. The mental elements and, to the extent it is relevant, any notions of fault or moral culpability, are captured through and reflected in the exculpatory factors in ch V of the Code.
The appellant's counsel had some difficulty in formulating with precision the mental element said to inhere in 'control' and 'drive' in the Road Traffic Act. He submits that the mental element in control requires that a person consciously chooses to perform the relevant actions, aware of the nearby cars and other physical surrounds.[37] In our view, such a construction would involve questions of degree and significant uncertainty in its application and is unlikely to have been objectively intended. No such uncertainty arises on our preferred construction, by which 'control' in the definition of 'drive' means physical control and has no mental element. This is a further consideration that counts against the appellant's construction.
[37] Appeal ts 16.
As we have said, the definition of 'drive' in the Road Traffic Act includes, in relation to a vehicle, to have control over the steering, movement or propulsion of the vehicle. In the context of the definition of drive, we read 'control' as connoting physical control and as not involving any mental element. In our view, on a proper construction of the Road Traffic Act, a person whose hands are on and operating the steering wheel and whose feet are on and operating the accelerator and brake of a car while the car is moving is driving the car, within the meaning of the Road Traffic Act, and that will be so without any need to establish any degree of consciousness on the part of the driver.[38] Thus, the trial judge's finding that the appellant drove his car was correct.
[38] Indeed, because the definition of 'driver' uses the disjunctive 'or', a person who has control over any one of steering, movement or propulsion is a driver: Peters v The State of Western Australia [No 2] [2013] WASCA 205 [16], [90].
The appellant relies on the decision of the High Court in Jiminez v The Queen.[39] In our view, Jiminez does not assist the appellant's contentions. Jiminez was concerned with an issue different from the issue raised by the appellant's first ground of appeal. The appellant challenges the conclusion that he was driving the vehicle. In Jiminez, the High Court held that driving while asleep was, on that account, not conscious or voluntary and therefore did not attract criminal responsibility.[40] That is not to be equated with a conclusion that there was no driving. For the reasons we have explained, in the circumstances of this case there was, as the trial judge rightly held, no room for s 23A (the Code equivalent to the common law requirement of voluntariness) to apply to the appellant's case.
[39] Jiminez v The Queen; see appellant's submissions [21] - [23].
[40] Jiminez v The Queen (577, 578, 581).
The appellant also referred to a passage of Lord Goddard CJ's judgment in Hill v Baxter[41] which was quoted by the majority in Jiminez[42] to support the challenge to the conclusion that he was not driving the vehicle. The passage their Honours quoted included his Lordship's obiter statement that a person who is in the driver's seat with his hands on the steering wheel who has a stroke or an epileptic seizure might be in such a state of unconsciousness that he could not be said to be driving at all.[43] The majority in Jiminez did not expressly or impliedly approve this statement. Rather, their Honours referred to other parts of the quotation relating to a driver who falls asleep at the wheel. Their Honours then went on to point out that if a person's condition was such that their actions are unconscious or involuntary, it does not matter what the cause is (including epilepsy), they cannot be found guilty of an offence unless the acts which constitute it have been done voluntarily.[44]
[41] Hill v Baxter [1958] 1 QB 277.
[42] Jiminez v The Queen (580 - 581).
[43] Hill v Baxter (282 - 283).
[44] Jiminez v The Queen (581).
Nothing said in Hill v Baxter is capable of detracting from the construction we have given to the relevant provisions of the Road Traffic Act, read with ch V of the Code.
For these reasons, we would dismiss ground 1 of both appeals.
We turn to ground 2 of the appeal in relation to count 1 ‑ dangerous driving occasioning death.
Count 1; ground 2 in CACR 60 of 2016: was the appellant's driving dangerous?
Ground 2 challenges the judge's finding that the appellant's driving was dangerous.
The appellant submits:
(1)the trial judge did not refer in his reasons to the test of when driving can be said to be dangerous, namely there must be something more than a mere want of care on the part of the driver, but rather something which 'subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention';[45]
(2)the only aspect of driving relied on by the State as creating a danger was the appellant's vehicle speed, which was about 100 km per hour, 20 km per hour above the speed limit;[46]
(3)travelling at that speed in conditions of light to moderate traffic was not intrinsically dangerous regardless of the circumstances such as would sustain an inference from the objective physical movement of the car to the driving behaviour of the driver, in the way explained by McLure JA in McPherson v Lucas;[47]
(4)the fact of the collision is not proof that the driving was dangerous;[48]
(5)the State did not particularise or allege what it was that led the appellant to fail to avoid running into the back of the deceased's motor cycle;[49]
(6)in the circumstances of this case, lack of attentiveness was a necessary element of any dangerousness of the appellant's driving;[50] and
(7)the trial judge's findings of fact compel the conclusion that the appellant failed to avoid the collision because he suffered a seizure. That means that the necessary requirement of fault on the part of the appellant could not be established. Fault is a necessary requirement for an offence under s 59.[51]
[45] Appellant's submissions [35], referring to McBride v The Queen (1966) 115 CLR 44, 50, 51; Jiminez v The Queen (579); McPherson v Lucas [2008] WASCA 56 [24]; see also appeal ts 6 - 7, 9.
[46] Appellant's submissions [37].
[47] Appellant's submissions [38], referring to McPherson v Lucas [31].
[48] Appellant's submissions [39].
[49] Appellant's submissions [40].
[50] Appeal ts 7.
[51] Appellant's submissions [41], referring to Smith v The Queen [1976] WAR 97; Kaighin v The Queen (1990) 1 WAR 390, 395.
It is true, as the appellant emphasises, that the trial judge did not set out or refer to the legal principles regarding the test for whether driving has the quality of dangerousness referred to in s 59 of the Road Traffic Act. However, we do not accept that it can consequently be inferred that the judge failed to apply the correct test and instead erroneously reasoned that the facts of the accident and the appellant's speed were necessarily determinative of the dangerousness of the appellant's driving.[52] As explained below, when the correct test is applied to the facts found by the trial judge, his Honour's conclusion that the appellant's manner of driving was dangerous is amply justified. In the circumstances, we would not infer that the judge applied the wrong test.
[52] Appeal ts 7, 11.
The concept of driving in a manner dangerous to the public or in person was explained by Barwick CJ in McBride v The Queen.[53] His Honour said that the section:
[I]mports a quality in the … manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.
[53] McBride v The Queen (49 - 50), applied in McPherson v Lucas [25].
Barwick CJ contrasted the offence of dangerous driving with that of negligence. He said:[54]
The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby.
[54] McBride v The Queen (50); see also McPherson v Lucas [26].
In Jiminez, the High Court stated that:
For the driving to be dangerous for the purposes of [the equivalent of s 59A], there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention. Although a course of conduct is involved it need not take place over any considerable period. Nor need the conduct manifest itself in the physical behaviour of the vehicle. If the driver is in a condition while driving which makes the mere fact of his driving a real danger to the public, including the occupants of the motor vehicle, then his driving in that condition constitutes driving in a manner dangerous to the public.[55]
[55] Jiminez (579).
In McPherson v Lucas,[56] McLure JA observed that earlier authorities suggesting fault was an independent element of the offence had been overtaken by the decision of the High Court in Jiminez. The authorities relied on by the appellant[57] are among the authorities referred to by her Honour. In Jiminez, the court said:
Driving in a manner dangerous to the public is at once both the offence and, if it is relevant, the fault, but it will be a defence to establish an honest and reasonable mistake as to facts which if true would exculpate the driver.[58]
[56] McPherson v Lucas [22].
[57] See footnote 45 above.
[58] Jiminez (583).
In McPherson v Lucas, McLure JA explained that the use of the word 'establish' in that proposition was apt to mislead. The defendant has only an evidentiary burden.[59]
[59] McPherson v Lucas [23].
As we have said, liability under s 59 and s 59A is not absolute: it does not extend to involuntary acts and s 24 may apply to exclude criminal responsibility.[60]
[60] See footnote 35 above.
While the fact of the accident does not, of itself, demonstrate that the driving was dangerous, the incident in which the motor vehicle is involved can be relied on by the prosecution to provide evidence from which the quality of driving may be inferred.[61]
[61] McBride (50 - 51); Lodge v Magorian [55].
In McPherson v Lucas, McLure JA explained that the focus of the inquiry under s 59A (or s 59) is the driving behaviour of the driver, and that the objective physical movement of the car is relevant only as a fact from which an inference about the driving behaviour of the driver may be able to be drawn. Her Honour explained the position as follows:
The State's position is that the objective physical movement of the car is a fact in issue in an offence under s 59A. That is wrong. The relevant fact in issue is the actual driving behaviour of the driver: R v Coventry (1938) 59 CLR 633; McBride. The objective physical movement of the car is only a fact from which an inference about the actual driving behaviour of the driver can often but not always be drawn. It will most often be drawn when the driving is intrinsically dangerous regardless of the circumstances. It will be drawn less often when the quality of the driving depends on the surrounding circumstances as in McBride and this case. An allied contention of the State was that whether or not the appellant looked to her left to determine if there were oncoming cars on Broadway is irrelevant because the test of dangerous driving is objective. The correct position is that it is necessary to first make factual findings as to the actual driving behaviour of the driver. Whether or not the driver looked for oncoming traffic is part of the manner of driving and is relevant. The objective question is whether the manner of driving so found on the facts has the necessary quality of being dangerous to the public. In making this objective assessment, regard is had to what the driver knew or ought reasonably to have known.
Applying this approach, on the judge's findings, the physical movement of the appellant's car provided a powerful basis to infer that the appellant's manner of driving was dangerous. The appellant's car proceeded at about 100 km per hour, which was faster than the surrounding traffic.[62] His car caught up to the motor cycle being driven in the same lane by the deceased, collided with it, dragging it along, still at a speed of about 100 km per hour, then caught up to another vehicle (the Subaru) in the same lane, forcing the motor cycle into the back of that vehicle.[63] All of this occurred without the appellant's car slowing down at any stage,[64] and in good conditions during the day.[65] It was after the motor cycle was jammed between the two vehicles that the deceased fell off and was killed.[66] Thus, it is all of the appellant's driving up to and including when his car collided with the Subaru that is relevant to his manner of driving.
[62] Primary reasons [4], [22].
[63] Primary reasons [4].
[64] Primary reasons [6].
[65] Primary reasons [119].
[66] Primary reasons [4] - [5], [37].
The judge found that the appellant did not apply the brakes at any stage.[67]
[67] Primary reasons [6], [25].
These features of the physical movement of the appellant's car, and the failure of the appellant to apply the brakes, sustain the conclusion that in driving at a speed of 100 km per hour without making any adjustment to his speed or direction of travel on account of the presence, location and behaviour of other vehicles, the appellant's manner of driving was dangerous.
The fact that the reason that the appellant drove in this manner was a seizure he was suffering does not detract from the characterisation of the manner of the appellant's driving as dangerous. Rather, that fact engages ch V of the Code and, as we have explained, in particular, s 27 of the Code.
For these reasons, ground 2 fails.
Consequently, appeal CACR 60 of 2016 against the appellant's acquittal on the offence of dangerous driving occasioning death on account of unsoundness of mind must be dismissed.
Count 2: ground 2 in CACR 36 of 2017: the defence under s 54(5) of the Road Traffic Act
Ground 2 in CACR 36 of 2017 alleges, in effect, that the trial judge erred in failing to find that the appellant had established a defence under s 54(5) of the Road Traffic Act. That section provides that it is a defence to a charge of an offence under s 54(3) (under which the appellant was charged) for the accused to prove that the accused was not aware of the occurrence of the incident.
The respondent concedes that ground 2 should be upheld and a verdict of acquittal substituted on count 2.[68] For the reasons that follow, in our respectful view that concession is rightly made.
[68] Respondent's submissions in CACR 36 of 2017 [16] - [19]; appeal ts 28 - 30.
At trial, neither counsel made any reference to s 54(5). It appears that all counsel, and ultimately the trial judge, proceeded on the basis that the verdicts on all three counts would stand or fall on the success or failure of the appellant's contentions regarding count 1. Not having been invited to consider s 54(5), the judge did not make a wrong decision on a question of law. However, on the judge's findings, a defence under s 54(5) was made out. The judge found that the appellant could not understand what had occurred and did not appreciate that he had been in an accident or accidents.[69] Those findings are tantamount to a finding that the appellant was not aware of the occurrence of the incident for the purpose of s 54(5). Consequently, there was a miscarriage of justice in that, had the learned trial judge considered s 54(5), he would have unconditionally acquitted the appellant of count 2.
[69] Primary reasons [152].
It is not to the point that the reason for the appellant's lack of awareness was the seizure he had suffered. The defence under s 54(5) does not direct attention to the reason for a driver's lack of awareness of the incident: if the lack of awareness is established, the defence is made out.
It is not difficult to see why the legislature saw fit to include the defence of s 54(5) of lack of awareness of the occurrence of the incident. A person is not easily seen as culpable in failing to report an incident of which they are unaware, and that will be so whatever might be the reason for that lack of awareness.
For these reasons, we would uphold ground 2 of the appeal in relation to count 2, set aside the finding of not guilty on the ground of unsoundness of mind and enter a verdict of (unqualified) acquittal.
Count 3: ground 3 in CACR 36 of 2017; the defence under s 56(5)(b)
Section 56(2) of the Road Traffic Act creates the offence of failing to report an offence in circumstances where the relevant incident occasioned death or grievous bodily harm. Section 56(5)(b) provides that it is a defence to this offence for an accused to prove that 'a member of the police force attended at the scene of the incident and took the necessary particulars of the incident'.
Ground 3 contends that there was a miscarriage of justice occasioned by the failure of the trial judge to determine whether the evidence proved the defence provided for by s 56(5)(b). The respondent concedes this ground.[70] In our respectful opinion, that concession was rightly made.
[70] Respondent's submissions in CACR 36 of 2017 [20], [22].
The trial judge's attention was not directed to the defence under s 56(5)(b). Had it been, on the unchallenged evidence before the court, and on his Honour's findings, the defence would inevitably have been made out. The unchallenged evidence was to the effect that, within about 10 minutes of the occurrence of the accident, police arrived at the scene of the incident, and spoke to witnesses.[71] Further, the evidence was that police officers attended at the appellant's house within approximately half an hour of the incident.[72] In those circumstances, it must be concluded that members of the police force had attended at the scene of the incident and taken the necessary particulars of the incident within the meaning of s 56(5)(b). Consequently, ground 3 of the appeal in relation to count 3 must be upheld, the finding of not guilty on the ground of unsoundness of mind set aside and a verdict of (unqualified) acquittal substituted.
[71] ts 206 - 208, 217 - 218, 228 - 229.
[72] ts 230, 239. See also Primary reasons [14], [66].
Conclusion
For the reasons we have given, we would:
(1)dismiss appeal CACR 60 of 2016 against the acquittal on account of unsoundness of mind on count 1;
(2)uphold ground 2 of the appeal in CACR 36 of 2017, set aside the finding of not guilty on account of unsoundness of mind on count 2 and substitute a verdict of acquittal; and
(3)uphold ground 3 of the appeal in CACR 36 of 2017, set aside the finding of not guilty on account of unsoundness of mind and substitute a verdict of acquittal.
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