Ducaj v The Queen
[2019] SASCFC 152
•17 December 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
DUCAJ v THE QUEEN
[2019] SASCFC 152
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly, The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Nicholson)
17 December 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
This is an appeal against conviction. The appellant was found guilty of the charge of aggravated creating a likelihood of harm contrary to s 29(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
Two police officers attended an address based on information that there might be cannabis growing on the premises. No answer was received when the officers knocked on the door. The appellant, from the rear of the premises, informed the officers that he was a cleaner and he would go inside to obtain identification. One of the officers, Constable Walker, positioned himself near some locked gates located in the middle of the driveway. The other officer, Constable Leahy, remained at the rear of the premises. She observed the appellant emerging from a hole on the roof. The appellant then entered a van parked on the premises. The trial judge found that the accused drove the van into, and over, the gate, and only narrowly missed colliding with Constable Walker as he took evasive action. Her Honour also found that the appellant committed the offence knowing the officer was acting in the course of his duties, thereby proving the aggravating feature of the offence.
There are two grounds of appeal. They are that the trial judge misdirected herself as to the elements of the offence of aggravated creating a likelihood of harm in that she held that proof of reckless indifference for the purpose of s 29(3)(b) only required the prosecution to establish that the applicant was aware of a substantial risk of harm and decided to engage in the relevant conduct nevertheless; and that the trial judge erred in holding that on the facts as found the offence was proved.
Held per Stanley J (Kourakis CJ, Kelly, Peek, and Nicholson JJ agreeing), dismissing the appeal on ground 1:
1. There has been no error demonstrated in the trial judge’s finding that a contravention of s 29(3) of the Criminal Law Consolidation Act 1935 (SA) was proved.
Held per Kourakis CJ (Kelly, Peek and Nicholson JJ agreeing), dismissing the appeal on ground 2:
1. The judge erred in law in directing herself that the element of reckless indifference involved engaging in conduct knowing that it exposed another to a substantial risk of harm. However, this failure cannot have affected the result because the judge correctly directed herself on the element of knowledge of the likelihood of harm in paragraph [15] of her Honour’s reasons.
Held per Stanley J, dismissing the appeal on ground 2:
1. The case of R v Shah [2018] SASCFC 90 should not be followed to the extent that it treats knowledge of likelihood for the purpose of s 29(3) of the Criminal Law Consolidation Act 1935 (SA) as different from knowledge of substantial risk.
2. The judge's direction accurately conveyed the nature of the requisite mental element for proof of the offence. There was no misdirection.
Criminal Law Consolidation Act 1935 (SA) s 21, s 23, s 24, s 29, s 29A; Criminal Code (Tas.) s 157(1)(c); Crimes Act 1900 (NSW) s 18, referred to.
Boughey v The Queen (1986) 161 CLR 10; Nelson v Police [2011] SASC 55, applied.
R v Ducaj [2018] SADC 146; R v Crabbe (1985) 156 CLR 464; Royall v The Queen (1991) 172 CLR 378; R v Shah [2018] SASCFC 90; Boughey v The Queen (1986) 161 CLR 10; R v Parenzee (2008) 101 SASR 469; Nelson v Police [2011] SASC 55; R v Abdul-Rasool (2008) 18 VR 586, discussed.
DUCAJ v THE QUEEN
[2019] SASCFC 152
KOURAKIS CJ: I gratefully adopt the summary of facts in the reasons of Stanley J. I would dismiss the appeal on ground 1 for the reasons given by his Honour. I would also dismiss the appeal on ground 2 for the reasons which appear below.
The enactment of s 29
Section 29 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) relevantly provides:
29—Acts endangering life or creating risk of serious harm
(1) Where a person, without lawful excuse, does an act or makes an omission—
(a) knowing that the act or omission is likely to endanger the life of another; and
(b) intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered,
that person is guilty of an offence.
…
(2) Where a person, without lawful excuse, does an act or makes an omission—
(a) knowing that the act or omission is likely to cause serious harm to another; and
(b) intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
that person is guilty of an offence.
…
(3) Where a person, without lawful excuse, does an act or makes an omission—
(a) knowing that the act or omission is likely to cause harm to another; and
(b) intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
the person is guilty of an offence.
The fourth report of the Criminal Law and Penal Methods Reform Committee of South Australia (the Mitchell Committee) published in 1977 recommended the enactment of the offence of endangering life or safety as one of two measures to replace what were described as the ‘archaic’ provisions of ss 25, 26 and 27 of the CLCA which created the offences of choking, stupefying and administering poison.[1] The Mitchell Committee recommended the enactment of:[2]
…a general offence of endangering life or safety being reckless as to causing death or serious bodily injury.
[1] Criminal Law and Penal Methods Reform Committee, Fourth Report: The Substantive Criminal Law (1977) 76-77. The other recommended measure was to include in the definition of assault the application of heat, light, electrical force, gas, odour or any other substance or thing, if applied to such a degree as to cause injury or personal discomfort.
[2] Criminal Law and Penal Methods Reform Committee, Fourth Report: The Substantive Criminal Law (1977) 77.
It will immediately be observed that the recommended concept of endangering life is reflected in s 29(1) of the CLCA but that sub-ss (2) and (3) do not adopt, as an element, the endangerment of safety. They refer instead to the likelihood of harm or serious harm, perhaps because an element of endangering safety would not readily lend itself to a hierarchy of offending based on the distinction between harm and serious harm. It should also be noted that if an offence against any of the provisions of s 29 of the CLCA is committed with an accompanying intention to bring about the proscribed result there may be very little, or no, difference between the offence against s 29 of the CLCA and an attempt to commit culpable homicide or an assault causing (serious) harm.
In 1986, on introducing the Criminal Law Consolidation Act Amendment Bill 1986 (SA) to amend the CLCA to give effect to that recommendation, the Attorney-General, the Honourable C J Sumner, explained the amendments, which included the enactment of a new s 29 of the CLCA, as follows:[3]
Clause 5 effects various reforms advocated by the Mitchell Committee. Various sections, dealing with neglect, the abandonment of children where life is endangered, actions intended to cause harm to others and interfering with railways and railway equipment, are repealed and replaced by two all-embracing sections. Proposed new section 29 provides that it will be an offence, punishable by 14 years imprisonment, to perform an act knowing that the life of another will be endangered and intending or being reckless in relation to that consequence. A similar offence is created for acts intended to cause grievous bodily harm. Proposed new section 30 will make it an offence to be in possession of objects intended to be used to kill or harm another.
[3] South Australia, Parliamentary Debates, Legislative Council, 19 August 1986, 423.
The elements of s 29 offences
Leaving aside for now the meaning of the word ‘likely’, the elements of the offences enacted by s 29 of the CLCA may be stated as follows.
The first element of each offence is that the conduct of the accused is likely to cause (serious) harm to, or endanger the life of, another. Even though not expressly stated, that element is a necessary implication of subparagraph (a) of each subsection.
The second element is that there is no lawful excuse for engaging in the conduct. A lawful excuse, generally speaking, is one which, by operation of a legislative provision or common law rule, exonerates or justifies conduct which would otherwise be an offence.
The third element, to be found in subparagraph (a) of each offence, is that the accused knows that his or her conduct was likely to cause (serious) harm or endanger the life of another. The concept of knowledge needs no further elaboration for the purposes of this appeal but, depending on the circumstances of the case, may demand closer consideration and careful directions.
The fourth element, to be found in subparagraph (b) of each subsection, is that the accused either intends to cause (serious) harm or endanger life or is recklessly indifferent as to whether the (serious) harm, or endangering of life, will be caused.
It may immediately be observed that the express enactment of subparagraph (b) means that deliberately engaging in conduct with the knowledge prescribed by subparagraph (a) is not sufficient to constitute the offence. The prosecution must also prove either an intention or reckless indifference as to the causation of (serious) harm or endangerment of life.
The first alternative of the fourth element of intention requires no elaboration for present purposes, bearing, as it does, the meaning that term generally has when it is an element of an offence.
The alternative element of recklessness, on the other hand, must be adapted to its particular context in the s 29 offences. That is because the concepts of recklessness and reckless indifference are protean. Recklessness may be used to refer to the conduct, or objective, element of an offence, in which case it generally denotes gross or criminal negligence. It is not used in that sense in s 29. Plainly enough, it is one of two alternative fault elements set out in paragraph (b) of each subsection. Alternatively, recklessness may be a fault, or subjective, element, in which case recklessness generally refers to ‘the unreasonable or unjustifiable taking of a risk which is known to the accused’.[4]
[4] B Fisse, Howard’s Criminal Law (Law Book Co, 5th ed, 1990) 486-494; P Gillies, Criminal Law (Law Book Co, 2nd ed, 1990) 56-61 referred to in The Laws of Australia at [9.1.2670].
Recklessness, as a fault element, generally requires some, not necessarily much, foresight of the possibility or probability of the proscribed consequence.[5] However, for the purposes of s 29 offences, mere advertence to a possibility of the consequence is not sufficient, because, as we have seen, subparagraph (a) of each of the subsections requires knowledge of the likelihood of the consequence.
[5] See survey of provisions in The Laws of Australia at [9.1.2680].
At common law, awareness that death or grievous bodily harm will probably result from doing an act is a sufficient fault element for murder. In R v Crabbe, the High Court held that, in the absence of any contrary statutory provision, ‘a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results’.[6] The Court held that knowing that death or grievous bodily harm is merely possible is not sufficient.[7] On the other hand, the fault element of recklessness for manslaughter is satisfied by foresight of possible consequences.
[6] R v Crabbe (1985) 156 CLR 464 at 469.
[7] (1985) 156 CLR 464 at 469-470.
In New South Wales, it is a sufficient fault element for murder, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), that the defendant had a ‘reckless indifference to human life’ but it has been held that that element requires also an awareness of the substantial likelihood that death would result.[8] In Royall v The Queen (Royall), Deane and Dawson JJ, with whom Mason CJ and Brennan J expressly agreed, said:[9]
Although the use of the term ‘reckless indifference’ in s. 18(l)(a) must be sufficient to justify its use by the trial judge, the judgment of the Court in Crabbe avoids the use of that term in relation to malice aforethought at common law, reflecting the view of Gibbs J. in La Fontaine v. The Queen that it is a term to be avoided because it is not easy to explain to a jury the difference between reckless indifference which, if it exists, may justify a conviction of murder and that recklessness which would warrant a conviction for manslaughter by criminal negligence. Nevertheless the term ‘reckless indifference’ has frequently been used in relation to malice aforethought at common law (see Pemble) and there is no reason to suppose that when it is used it has any different meaning in that context from that which it bears in the definition of murder in s. 18(l)(a). Of course, the definition in s. 18(l)(a) expresses somewhat differently the subject-matter of the indifference (human life rather than death or grievous bodily harm), but that is another thing. If at common law, in the context of murder, knowledge of the probability, rather than the possibility, of the consequences is required to constitute reckless indifference to them, then it seems to us that the same requirement should be imported into a statutory provision which purports to define the crime of murder by reference to reckless indifference without any elaboration of what is meant by that term: see Reg. v. Annakin.
Nothing that was said in Crabbe was intended to prescribe any set formula, provided that knowledge of the probability or likelihood, and not the possibility, of the consequences was the applicable test.
(Citations omitted)
[8] Royall v The Queen (1991) 172 CLR 378 at 395 (Mason CJ).
[9] (1991) 172 CLR 378 at 416-417.
In Royall Toohey and Gaudron JJ described reckless indifference as an awkward concept but identified two of its elements. The first was an indifference to the result or to human life or, put in another way ‘some animadversion by the applicant to the death of the deceased, not merely injury to her’.[10]
[10] (1991) 172 CLR 378 at 431 (Toohey and Gaudron JJ).
The second was an awareness of the probability as distinct from the possibility of death.[11]
[11] (1991) 172 CLR 378 at 431 (Toohey and Gaudron JJ).
Even though McHugh J questioned the importation of the requirement of an appreciation of probability of death or serious harm from the common law into the statutory context of s 18 of the Crimes Act 1900, his Honour nonetheless held that the element of reckless indifference to human life ‘require[d] proof of knowledge on the part of the accused that his or her act or omission would probably cause death’.[12]
[12] (1991) 172 CLR 378 at 455.
The protean nature of the concept of recklessness is evident in the various provisions of the CLCA in which it is deployed. For the purposes of offences of actually causing physical or mental harm, it is defined by s 21 of the CLCA as ‘causing harm or serious harm to another if the person … is aware of a substantial risk that his or her conduct could result in harm or serious harm … and engages in the conduct despite the risk and without adequate justification’. A similar definition is used for the purposes of the offence of shooting at police officers enacted by s 29A of the CLCA.[13]
[13] See also the offences relating to the discharge of firearms enacted by s 32AA of the CLCA.
However, for the offence of rape,[14] ‘reckless indifference’ is defined as being ‘aware of the possibility that the other person might not be consenting to the act’, but deciding to ‘proceed regardless of that possibility’.[15]
[14] Contrary to s 48 of the CLCA.
[15] CLCA s 47.
The inclusion of the alternative mental state of recklessness in the s 29 offences necessarily contemplates that there will be cases in which, even though the first and third elements, likelihood and knowledge of likelihood, are proved, the accused nonetheless does not intend the harm to be caused. Indeed, because in many cases in which intention can be proved an offence of attempt will be made out, it can be expected that in many, if not most, s 29 charges the prosecution will rely on the recklessness fault element. It is necessary therefore to consider more closely what the fault element of recklessness adds to the ‘knowledge of the likelihood’ element in subparagraph (a) of each subsection.
A person may engage in dangerous conduct on the road, at work or in extreme sports, knowing that harm is likely but not intending, indeed desperately hoping not, to cause harm. Despite the semantic incongruity in describing a person who hopes to avoid a consequence as being indifferent to it, a person so acting may nonetheless be recklessly indifferent if there is no good reason or adequate justification for engaging in conduct which is likely to cause (serious) harm or endanger life. If a person produces a dangerous situation without any good reason for doing so, for example just for the thrill of it, or to advance his or her own selfish interest, he or she may be found to be recklessly indifferent for the purposes of the s 29 offences even if he or she hoped that no‑one would be harmed. Only when a person has a good reason, or adequate justification, to use the expression found in the definition of ‘recklessly’ in s 21 of the CLCA, for acting in a way which is likely to cause (serious) harm or endanger life, is that person not recklessly indifferent to its causation. An obvious example is a person who acts in an emergency when presented, through no fault of his or her own, with two very dangerous alternatives.
In R v Crabbe, the High Court explained: [16]
A person who does an act causing death knowing that it is probable that the act will cause death or grievous bodily harm is, as Stephen’s Digest states, guilty of murder although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or even by a wish that death or grievous bodily harm might not be caused. That does not mean that reckless indifference is an element of the mental state necessary to constitute the crime of murder. It is not the offender’s indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element. Of course, not every fatal act done with the knowledge that death or grievous bodily harm will probably result is murder. The act may be lawful, that is, justified or excused by law. A surgeon who competently performs a hazardous but necessary operation is not criminally liable if the patient dies, even if the surgeon foresaw that his death was probable. Academic writers have pointed out that in deciding whether an act is justifiable its social purpose or social utility is important: see, for example, Howard, Criminal Law, 4th ed. (1982), pp. 54-55, 357-359. That question need not be discussed in the present case where there was no possible justification or excuse for the actions of the applicant. It should however be made clear that lack of social purpose is not an element of the mental state with which we are here concerned, though it may bear on the question whether the act is justifiable.
[16] (1985) 186 CLR 464 at 470.
The ‘no lawful excuse’ element of the s 29 offences will exonerate the surgeon mentioned in the above passage, the person acting in self-defence or defence of another or the police officer executing his or her duty because their conduct is authorised by law. However, there are many other circumstances in which there is good reason to take a risk which, nonetheless, do not amount to a lawful excuse.[17] In addition to the example of being caught in a dilemma, already given, others may readily be contemplated: rushing an injured person to hospital, performing a dangerous manoeuvre in an extreme sport, executing a dangerous procedure in a workplace or responding to a natural disaster.
[17] See discussion in The Laws of Australia at [9.1.2690] and the following academic discussions cited therein: See B Fisse, Howard’s Criminal Law (Law Book Co, 5th ed, 1990) 490; E Colvin, Principles of Criminal Law (Carswell, 2nd ed, 1991) 130-131; D Ormerod, Smith and Hogan’s Criminal Law (Oxford University Press, 13th ed, 2011) [5.2.2]; D Stuart, Canadian Criminal Law: A Treatise (Carswell, 2nd ed, 1987) 139-140.
In many cases there will be no difficulty in deciding on which side of the line an accused’s state of mind falls. Other cases may be more difficult. In all cases it is a matter for the tribunal of fact to adjudge whether, in all of the circumstances, the accused was recklessly indifferent as to whether his or her conduct would cause harm.
I return now to the meaning of the word ‘likely’. After judgment was reserved on the hearing of this appeal on 14 August 2019, the Court reconvened as a court of five to consider the correctness of the meaning given to it by this Court’s decision in R v Shah[18] (Shah).
[18] R v Shah [2018] SASCFC 90.
The appellant in Shah was convicted of two counts of aggravated endangering life contrary to s 29(1) of the CLCA. The trial Judge in Shah had directed the jury that it was sufficient to satisfy the mental element of the offence that the appellant realised that ‘a consequence of [his driving] might be to endanger the life of another’ but proceeded ‘recklessly indifferent as to whether [the] driving endangered the life of [another]’. The appellant’s appeal on the ground that the direction was wrong in law was allowed. The Court in Shah held:[19]
[44]Returning to the construction of s 29(1), if the legislature had not included paragraph (a) making it an element of the offence that the defendant know that the act or omission is likely to endanger the life of another; it may well be that paragraph (b) insofar as it refers to reckless indifference on its proper construction would have required that the defendant is aware of a substantial risk that his or her conduct will endanger the life of another and engages in the conduct despite the risk and without adequate justification.
[45]However, s 29(1) must be construed as a whole and it would be incongruous if paragraph (a) required knowledge of likelihood and paragraph (b) required only knowledge of substantial risk. Accordingly, on its proper construction, paragraph (b) insofar as it refers to reckless indifference requires that the defendant know that it is likely that his or her conduct will endanger the life of another and does not care, ie engages in the conduct despite the risk and without adequate justification. The articulation of this second component reflects the language of the definition of ‘recklessly’ in s 21 not because that definition applies to s 29 as such but because this second component is part of the ordinary conception of reckless indifference in ordinary parlance and on the proper construction of s 29. This is consistent with the construction of ‘reckless indifference’ in s 29 adopted by Bleby J in The Queen v O extracted above.
…
[47]Be that as it may, the direction given by the Judge in this case which fixed the appreciation of risk at the mere possibility of endangerment of life was wrong in law.
(Emphasis in original; footnote omitted)
[19] [2018] SASCFC 90 at [44]-[45], [47].
I observe in passing that whereas in the impugned direction the trial Judge had used the word ‘might’, this Court in paragraph [44] of the judgment in Shah went further and observed that the element of recklessness was not satisfied by showing that the defendant was aware of a ‘substantial risk’, because subparagraph (a) required proof of knowledge that the conduct was likely to endanger life.
Mr Press SC, for the Director of Public Prosecution, contends that in that respect Shah went too far, and that creating a substantial risk of an event occurring is, for all practical purposes, the same as engaging in conduct which is likely to cause that event.
An event is likely to happen if it is probable or if it appears destined to happen. In its ordinary meaning, ‘likely’ does not only mean that a consequence is more probable than not. A consequence may be described as likely if the probability of its occurrence is evenly balanced and even when it is more probable that it will not occur. However, ‘likely’ connotes a consequence which has a relatively high probability of occurring. A consequence which is likely can therefore be usefully contrasted with one which is a mere possibility, a risk, hazard or a chance. In Boughey v The Queen (Boughey), Brennan J articulated the distinction between an appreciation of a risk that an event may happen and knowing that it will probably happen by describing the latter as an ‘expectation’ that it will happen. [20] It is ultimately a matter of judgment for the tribunal of fact whether the degree of probability of the consequence occurring is sufficient to describe the consequence as a likely one.
[20] Boughey v The Queen (1986) 161 CLR 10 at 41.
Examining the statistical probability encompassed by the compound expression ‘substantial risk’ and whether it is the same as a ‘likelihood’ is of little utility. As Gibbs CJ observed in a similar context in Boughey,[21] it often assists to contrast a word or concept with what it is not, its antonym. For the purposes of directing a jury on the meaning of likelihood, that term may usefully be contrasted with a mere possibility, which is plainly insufficient. However, to attempt to elucidate statutory text by the use of synonyms risks putting a judicial gloss on the statutory language. Recognising that the meaning of ordinary words is a question of fact, the substitution of other words for the statutory text may result in the application of a different meaning by the tribunal of fact to that intended by the legislature. It is the statutory language to which a tribunal of fact must give meaning and then apply to the facts. Persons who are risk averse may give the expression ‘substantial risk’ a meaning which encompasses consequences which are not likely at all.
[21] (1986) 161 CLR 10 at 15.
Some care is required in applying the above analysis to s 29(1) of the CLCA. The endangerment of life, like the causation of actual harm, is a consequence. However, whereas the latter consequence is actual harm, the former is the creation of an environment in which a person is exposed to the risk, peril or chance of death.
Accordingly, even though the proscribed consequence must be a likely one for all three offences constituted by s 29 of the CLCA, the eventuality for the purposes of s 29(1) is the creation of no more than the risk of death. A person’s life is endangered if exposed to an environment in which there is a risk or peril of harm or death.[22] However, for the purposes of ss 29(2) and (3) the conduct must be likely, not just to endanger safety, but to cause harm or serious harm.
[22] At least two apparent reasons may be postulated for the distinction between s 29(1) on the one hand and sub-ss (2) and (3) on the other. First, the loss of life is such a serious consequence that the proscription of conduct which creates a mere risk or peril of life is warranted. Secondly, it would be burdensome and would undermine the purpose of s 29(1) if the prosecution were required to prove that the defendant had a sufficient understanding of physiology to know that the conduct was likely to endanger life.
There is, therefore, a fundamental difference between sub-s (1) on the one hand, and sub-ss (2) and (3), on the other, of s 29 of the CLCA.
In R v Parenzee, Doyle CJ held that for the purposes of an offence against s 29(1) of the CLCA, it was necessary to prove that the conduct exposed the life of another to a real or substantial risk.[23] To express the conduct element of s 29(1) in that way, elides any reference to the likelihood that the conduct will create circumstances in which the life of another is endangered. It collapses the statistical possibility inherent in each of the words ‘likely’ and ‘endanger’ into a single test. The simplification of the test in that way may mislead. The word ‘likely’ governs the probability that the defendant’s conduct will bring about the proscribed state of affairs, that is the endangerment of the life of another. The state of affairs so described, the endangerment, is an exposure to risk, hazard or possibility of death. To conflate the two reduces the required degree of likelihood that the conduct will create the dangerous environment. It extends the scope of criminal liability contrary to the well accepted, and fundamentally important, rule of statutory construction applicable to the interpretation of criminal offences to do so.
[23] R v Parenzee (2008) 101 SASR 469 at [73].
The ratio of the decision in Nelson v Police[24] (Nelson) is not inconsistent with the meaning I would give to the word ‘likely’. Mr Nelson was charged with an offence against s 29(3) of the CLCA arising out of his execution of burn outs and donuts in a suburban cul-de-sac which had attracted a group of 60 spectators. His defence was that his driving was not likely to cause harm unless the spectators moved into his vehicle’s path. He was convicted in the Magistrates Court.
[24] Nelson v Police [2011] SASC 55.
The argument on the appeal before Doyle CJ proceeded on the basis that the definition of ‘recklessly’ in s 21 of the CLCA applied. Only after argument did Doyle CJ notice that it did not, but no further submissions were received on the legal significance of its inapplicability.
Doyle CJ referred back to his reasons in R v Parenzee and held that the same approach should be applied to s 29(3) of the CLCA, but did not advert to the difference between the consequences of the endangerment of life and actual harm in s 29(1) and s 29(3) respectively.[25] Be that as it may, the only issue on the appeal in Nelson was whether conduct can be said to be likely to cause harm when it will only do so if others act in certain ways or in the event that the person engaging in the conduct accidentally loses control.
[25] [2011] SASC 55 at [13].
In that respect Doyle CJ distinguished the decision of the Supreme Court of Victoria in R v Abdul-Rasool[26] in the following ways:[27]
[21] I acknowledge the force of the submission by Ms Chapman. However, in my opinion it is important to bear in mind that in this case the prosecution sought to characterise as endangering life conduct on the part of Ms Abdul-Rasool that included a further conscious or voluntary act that she did not perform, and sought to include it on the basis that she might have performed it. One can understand, in that context, the insistence by the Court that the focus had to be on what she did, and not what she might have gone on to do but did not go on to do. The offence with which she was charged required identification of the conduct relied upon, and that conduct was (in brief) the splashing of petrol on herself and her surroundings. It was one thing to point to circumstances that meant that that conduct endangered life (hence the attempt to rely upon other sources of ignition), but a quite different thing to rely upon a further conscious or voluntary act by Ms Abdul-Rasool as part of the conduct relied on. In truth, the case is quite different. The observations on which Ms Chapman relies have to be understood in that context.
[26] R v Abdul-Rasool (2008) 18 VR 586.
[27] [2011] SASC 55 at [21].
The reasons of Doyle CJ affirming the conviction, did not turn on any subtle distinction between the meanings of likely and substantial risk:[28]
[24]Mr Nelson’s driving was likely to cause harm because it was a form of driving that gave rise to a real risk that due to a momentary loss of control, or a slight miscalculation, his vehicle could move suddenly and unexpectedly in an unpredictable direction. There were spectators quite close to the vehicle. Having regard to the fact that there was no barrier between the spectators and the car, and no-one preventing spectators from moving wherever they wished, there was an evident risk of a spectator moving too close to the car. This combination of circumstances means that the act was one likely to cause harm. It might be harm resulting from a miscalculation or loss of control by Mr Nelson, or simply from someone getting too close to the car.
(Emphasis added)
[28] [2011] SASC 55 at [24].
Doyle CJ elaborated on that conclusion using the compound expression ‘real and substantial risk’ interchanged with the statutory expression ‘likely’:[29]
[26]I agree that the manner in which the Magistrate expressed his conclusions at [18] is, strictly, incorrect. The real and substantial risk of harm was present. It was present because of the real possibility that a spectator would get too close or possibly that Mr Nelson would miscalculate or lose control. The risk of harm was present and inherent in the circumstances in which Mr Nelson drove his vehicle, and did not arise only if and when there was a miscalculation, or loss of control, or one of the spectators got too close.
[27]I also reject the submission that it cannot be said that it was the driving that was likely to cause harm. It is false logic to argue that the cause of the harm would be the spectator getting too close, or the loss of control of the motor vehicle. Each of these things is part of the overall circumstances.
[28]It is irrelevant that the spectators were not in Mr Nelson’s direct path, and equally irrelevant that he did not drive at them.
[29] [2011] SASC 55 at [26]-[28].
The Director also relies on the decision of the High Court in Boughey.[30]In Boughey, the High Court considered the meaning of the word ‘likely’ in s 157(1) of the Criminal Code Act 1924 (Tas) (the Criminal Code) which provided that it was murder to cause death by an unlawful act which the offender ‘knew, or ought to have known, to be likely to cause death’ even if he or she had no wish to do so. Boughey, a medical practitioner, was convicted of murder for the killing of his romantic partner by applying pressure to her carotid artery during sexual intercourse. It should immediately be noticed that s 157(1) of the Criminal Code, unlike subparagraph (a) of each of the s 29 subsections, dealt only with the fault, or subjective, element of the offence of murder, the conduct, or objective, element being, plainly enough, homicide. Moreover, on the particular facts of Boughey, as the trial Judge told the jury, whether Boughey knew that the pressure was likely to cause death depended on his knowledge of the consequences of carotid artery pressure. When dealing with a defendant’s awareness that the physiological consequence of conduct may be death, it is understandably tempting to place a gloss on what he or she foresaw. And so it was that the Judge in Boughey directed the jury that ‘likely’ meant that there was ‘a good chance that it will happen’.
[30] (1986) 161 CLR 10.
The High Court by majority (Gibbs CJ, Mason, Wilson and Deane JJ; Brennan J in dissent) held that, in that statutory context, ‘likely’ did not mean ‘more likely than not’.[31] That holding is consistent with the meaning I would give the word in s 29 of the CLCA.
[31] (1986) 161 CLR 10 at 19.
Gibbs CJ also held that the Judge’s direction that ‘likely’ meant that there was ‘a good chance that it will happen’ was not a misdirection, in all of the circumstances of that case, because the Judge’s summing up emphasised the word ‘likely’ and nowhere equated ‘likelihood’ with a ‘possibility’.[32]
[32] (1986) 161 CLR 10 at 15.
Mason, Wilson and Deane JJ held that the word ‘likely’ was used in ‘its ordinary meaning, namely, to convey the notion of a substantial – a ‘real and not remote’ – chance regardless of whether it is less or more than 50 per cent.’[33]
[33] (1986) 161 CLR 10 at 21.
Two observations must be made about that passage. First, the synonym of a substantial chance was used to explain that ‘likely’ did not mean ‘more probable than not’. Secondly, and importantly, the plurality did not approve the Judge’s direction. Indeed, Mason, Wilson and Deane JJ observed that a basic objective of any general codification of the criminal law is to express the elements of an offence in terms which can be comprehended by jurors.[34] Their Honours warned that ‘[t]he courts should, however, be wary of the danger of frustrating that basic purpose of codification of the criminal law by unnecessarily submerging the ordinary meaning of a commonly used word in a circumference of synonym, gloss and explanation which is more likely to cause than to resolve ambiguity and difficulty’.[35]
[34] (1986) 161 CLR 10 at 21.
[35] (1986) 161 CLR 10 at 21.
Gibbs CJ too warned that a trial judge ‘should not seek to put a gloss on the ordinary words of the section’.[36]
[36] (1986) 161 CLR 10 at 15.
Disposition of the appeal
The Judge below erred in law in directing herself that the element of reckless indifference involved engaging in conduct knowing that it exposed another to a substantial risk of harm. Unlike the directions in Boughey, the emphasis in paragraphs [16] and [58] of the Judge’s reasons, when dealing with the element of recklessness, is on ‘substantial risk’, and her Honour’s ultimate finding of fact on the question of recklessness is in those terms.[37] Moreover, there is some distinction between the direction in Boughey, ‘a good chance’, and a ‘substantial risk’. Importantly, the difficulty here is that the use of the language ‘substantial risk’ allowed a process of reasoning which would lead to a conviction based on a degree of possibility that was little more than a chance or risk. For that reason, the gloss put on the word ‘likely’ by the Judge in this case was capable of causing a miscarriage of justice.
[37] R v Ducaj [2018] SADC 146 at [16], [58].
In directions on the first and third elements trial judges should not put a judicial gloss on the word ‘likely’. The direction should explain that the word ‘likely’ is not limited to describing a consequence which is more probable than not. The term may also be contrasted with a mere possibility, but synonyms for the word ‘likely’ should not be suggested. Juries should be told that the word carries its ordinary meaning, that no further elaboration is necessary and that it is for the jury to decide whether, on all of the evidence, the harm was a likely consequence of the conduct and whether the accused knew that it was likely. The direction on the element of being recklessly indifferent should neither repeat nor modify the directions as to knowledge of likelihood given on the third element. The jury should be directed that if they are satisfied beyond reasonable doubt of the third element, it is still necessary to consider whether the accused intended to cause harm or was recklessly indifferent to it. On the latter alternative fault element, the jury should be directed that the prosecution must show that there was no good reason or adequate justification for the conduct. Examples such as those which I have given in these reasons may assist the jury depending on the circumstances of the particular case.
However, the failure of the Judge to direct herself in that way in this case cannot have affected the result because her Honour correctly directed herself on the element of knowledge of the likelihood of harm in paragraph [15] of her Honour’s reasons.[38] The Judge then expressly found that the appellant knew his conduct was likely to cause harm:[39]
[57]I am satisfied beyond reasonable doubt that at the time of driving the van into, and over, the gates the accused knew Walker was on the driveway and in the vicinity of the gates, and as such knew the act was likely to cause harm to another. In proof of this element of the offence, I rely on Walker’s evidence that he made eye contact with the accused moments before the accused accelerated down the driveway and into the gates.
[38] [2018] SADC 146 at [15].
[39] [2018] SADC 146 at [57].
That finding is also, implicitly, a finding that the driving was, objectively, likely to cause harm, notwithstanding her Honour’s more limited, and insufficient, finding, expressed in paragraph [56], that the driving created ‘a real or substantial risk of harm’.[40] There being no evidence of any good reason or adequate justification for the appellant to drive in the way he did, the element of recklessness is necessarily made out on that finding.
[40] [2018] SADC 146 at [56].
Conclusion
I would dismiss the appeal.
KELLY J: I would dismiss the appeal. I generally agree with the reasons of the Chief Justice concerning appeal ground 2 and with the reasons of Stanley J concerning appeal ground 1.
PEEK J: I would dismiss the appeal. I generally agree with the reasons of the Chief Justice concerning appeal ground 2 and with the reasons of Stanley J concerning appeal ground 1.
STANLEY J:
Introduction
This is an appeal against conviction. The appellant was found guilty of the charge of aggravated creating a likelihood of harm contrary to s 29(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
There are two grounds of appeal. They are that the trial judge misdirected herself as to the elements of the offence of aggravated creating a likelihood of harm in that she held that proof of reckless indifference for the purpose of s 29(3)(b) only required the prosecution to establish that the applicant was aware of a substantial risk of harm and decided to engage in the relevant conduct nevertheless;[41] and that the trial judge erred in holding that on the facts as found the offence was proved.[42]
[41] Ground 2.
[42] Ground 1.
Section 29 of the CLCA provides:
29—Acts endangering life or creating risk of serious harm
(1) Where a person, without lawful excuse, does an act or makes an omission—
(a)knowing that the act or omission is likely to endanger the life of another; and
(b)intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered,
that person is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 15 years;
(b) for an aggravated offence—imprisonment for 18 years.
(2) Where a person, without lawful excuse, does an act or makes an omission—
(a)knowing that the act or omission is likely to cause serious harm to another; and
(b)intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
that person is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 10 years;
(b) for an aggravated offence—imprisonment for 12 years.
(3) Where a person, without lawful excuse, does an act or makes an omission—
(a)knowing that the act or omission is likely to cause harm to another; and
(b)intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
the person is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 5 years;
(b) for an aggravated offence—imprisonment for 7 years.
(4) If a court convicting a person of an offence against this section is satisfied that the act or omission constituting the offence was done or made by the convicted person in the course of the convicted person's use of a motor vehicle, the court must order that the person be disqualified from holding or obtaining a driver's licence for 5 years or such longer period as the court orders.
(5) Where a convicted person is disqualified from holding or obtaining a driver's licence—
(a)the disqualification operates to cancel any driver's licence held by the convicted person as at the commencement of the period of disqualification; and
(b)the disqualification may not be reduced or mitigated in any way or be substituted by any other penalty or sentence.
Circumstances of the offending
On 14 January 2017 two police officers, Constable Walker and Brevet Sergeant Leahy, attended at an address at Churchill Road, Prospect, on the basis of information received that there might be cannabis growing on the premises. The officers approached the front door of the house. No answer was received to a knock on the door. They became aware of a person at the rear of the premises. To obtain a better view, the officers travelled in a patrol car into a road running behind the house. Looking over the back fence the appellant was observed in the rear garden of the house. They called out to the appellant who replied stating he was a cleaner and would go inside and obtain identification.
Constable Walker returned to the front of the house and walked down the driveway and positioned himself about one metre from some locked gates which were located in the middle of the driveway. They were hinged to the house on one side and to the fence of the adjoining property on the other side. The gates were padlocked shut. The gates consisted of vertical metal bars with a space between each bar.
Sergeant Leahy remained at the rear of the premises and observed the appellant emerging from a hole in the roof. She called out to the appellant but received no response. She saw the appellant approach a van parked in the rear yard of the premises. The van was facing away from the driveway. She heard the appellant start the engine of the van. Sergeant Leahy used her police radio to alert Constable Walker that the van was heading to the front of the property. The appellant manoeuvred the van around the corner of the house and accelerated along the driveway into the gate and over the gate and some brickwork which had become detached from the house before turning left on to the roadway.
The judge made the following factual findings:[43]
[43] [2018] SADC 146 at [54].
(a) I am satisfied that Walker was standing on the driveway and in close vicinity of the gates as the accused drove the van around the corner of the premises. I am also satisfied that Walker was still in close vicinity of the gate as the accused accelerated the van towards the gates. I rely on Walkers evidence that he was standing near the gates as his eyes met those of the accused, moments before the vehicle accelerated into the gates.
Contrary to the submissions of defence counsel, I consider Walker’s evidence on this topic is not materially undermined by the evidence of Leahy. Leahy says that only a matter of seconds had elapsed between her seeing Walker near the gate (when she was positioned on the north-eastern boundary) and to the time of her seeing the van accelerate towards the gates (from a position between the two sheds).
Further, although Leahy warned Walker that the accused may be heading towards his cordon point, it does not follow that Walker would have necessarily moved from his position in the vicinity of the gates during that very short period of time. Nor does the fact that the cordon point was set up by Walker in what does appear to be a somewhat ineffective position, cause me to doubt Walker’s evidence that he was still close to the gates as the accused accelerated along the driveway towards the gate.
The driveway, as shown in the photographs, is not of any great length, and on both Walker and Leahy’s evidence, the accused’s act of driving into, and over, the gates occurs over a matter of seconds. I am satisfied that the accused was accelerating the vehicle and travelling at speed from the property, consistent with the accused being aware that the house was being used as a cannabis ‘grow house’ (as later discovered by police), and thus trying to avoid being located at the premises so as to be connected with that criminal activity.
(b) I am also satisfied that the van was initially impeded by the gate causing it to stall and stop. I prefer the evidence of Leahy and Green to Walker on this aspect of the evidence because they were watching the vehicle whereas Walker had by this stage turned his back to the van. On both the evidence of Leahy and Green, the van stopped only momentarily before the accused restarted the ignition and proceeded to drive over the gates and brickwork. Green said Walker had to ‘run and dive’ to avoid the van colliding with him.
Although neither Leahy nor Green could see Walker as the van collided with the gate, had Walker been in the position he described, neither Leahy nor Green would be able to do so as their line of vision was blocked by the van itself.
Green says that at the time Walker jumped out of the way of the vehicle, the van had already collided with the gates, stalled and proceeded through the gates. He also said Walker was near the garden when he jumped out of the way of the vehicle. By contrast Walker says he jumped into the front alcove (not the garden) at the time when the van was colliding with the gates. The difference between the evidence of Green and Walker doesn’t cause me to doubt Walker’s evidence. The two locations (the garden and the alcove) are but a short distance from each other, and both locations are in close vicinity to the gates. Further, on the evidence of Green and Leahy the van only momentarily stalls or stops before driving over the gates and brickwork and onto Churchill Road.
I am satisfied that whilst the van stalled and was initially impeded by the gate, the van only stopped momentarily before the accused re-started the ignition and proceeded to drive over the gates and brickwork.
(c) I am satisfied on the evidence of Walker that as the accused drove the van into, and over, the gate, he only narrowly missed colliding with Walker.
[Footnotes omitted.]
The judge found the offence proved on the basis she was satisfied beyond reasonable doubt that the appellant consciously and deliberately drove the van from the rear of the premises into and over the gates in the driveway and on to the road; that in driving the van into, and over, the gates the appellant created a real or substantial risk of harm to Constable Walker; that he did so knowing that his act of driving the van into, and over, the gates was likely to cause harm to Constable Walker; that the appellant was recklessly indifferent as to whether such harm was caused; and finally, that the appellant committed the offence against a police officer knowing he was acting in the course of his duty, thereby proving the aggravating feature of the offence.
It is convenient first to consider ground 2.
Ground 2
The judge gave the following directions relevant to the elements of the offence of aggravated creating likelihood of harm:
[T]he prosecution must prove that the accused consciously and deliberately performed an act which was likely to cause harm to another. In this case the alleged act is the accused driving a van from the rear of the premises into, and over, the gates and on to Churchill Road. An unconscious, accidental or non-deliberate act is not sufficient. The act need not in fact cause harm to any person. In deciding whether the act in question was likely to cause harm to another person, the test is objective. The question is whether the act creates a real or substantial risk of harm, as opposed to a fanciful or remote risk or a risk contingent upon the occurrence of some unsubstantiated conduct or speculative circumstance or event that is yet to exist for which there is no immediate prospect.
…
[T]he prosecution must prove that at the time of performing the relevant act, the accused either intended to cause harm to another, or was recklessly indifferent as to whether such harm is caused. An accused person is recklessly indifferent if, while not intending to cause harm to another, he knows that it is likely that his conduct will cause harm to another person, and not caring, engages in the conduct. In other words, in respect of this third element insofar as it relates to reckless indifference, the prosecution must prove the accused engaged in conduct giving rise to a substantial risk of harm, and aware of that substantial risk of harm, decided to engage in the relevant conduct nevertheless.
The appellant submits that the judge erred in directing herself that for the purpose of an offence against s 29(3) where the prosecution relies on an allegation of reckless indifference, the prosecution must prove the accused engaged in conduct giving rise to a real or substantial risk of harm, and aware of that real or substantial risk of harm, decided to engage in the relevant conduct nevertheless. The appellant contends that s 29(3) imposes a more exacting test for proof of the mental element of recklessness, namely that the accused knew it was likely his or her act or omission would cause harm but proceeded in any event. The appellant further submits this was a material error. The judge applied this direction in relation to the meaning of reckless indifference in finding that the appellant was recklessly indifferent as to whether harm was caused to Constable Walker because the appellant engaged in conduct giving rise to a real or substantial risk of harm and was aware of that real or substantial risk of harm, yet decided to engage in the driving conduct nevertheless.
The judge found:[44]
I am satisfied beyond reasonable doubt that the accused, at the time of driving the van into, and over, the gates, was recklessly indifferent as to whether such harm was caused. That is, the accused engaged in conduct giving rise to a real or substantial risk of harm, and was aware of that real or substantial risk of harm, yet decided to engage in the driving conduct nevertheless. I am satisfied on the evidence that the accused, having made eye contact with Walker, knew of his presence in close vicinity to the gate, and then engaged in the driving, determined to leave the premises without being apprehended by police, despite knowing of the real or substantial risk his driving posed to Walker.
[44] [2018] SADC 146 at [58].
The appellant submits this finding is contrary to the reasoning of the Court of Criminal Appeal in R v Shah.[45]In Shah the Court considered the construction of s 29(1). It said:[46]
Returning to the construction of s 29(1), if the legislature had not included paragraph (a) making it an element of the offence that the defendant know that the act or omission is likely to endanger the life of another; it may well be that paragraph (b) insofar as it refers to reckless indifference on its proper construction would have required that the defendant is aware of a substantial risk that his or her conduct will endanger the life of another and engages in the conduct despite the risk and without adequate justification.
However, s 29(1) must be construed as a whole and it would be incongruous if paragraph (a) required knowledge of likelihood and paragraph (b) required only knowledge of substantial risk. Accordingly, on its proper construction, paragraph (b) insofar as it refers to reckless indifference requires that the defendant know that it is likely that his or her conduct will endanger the life of another and does not care, ie engages in the conduct despite the risk and without adequate justification. The articulation of this second component reflects the language of the definition of “recklessly” in s 21 not because that definition applies to s 29 as such but because this second component is part of the ordinary conception of reckless indifference in ordinary parlance and on the proper construction of s 29. This is consistent with the construction of “reckless indifference” in s 29 adopted by Bleby J in R v O extracted above.
[Citation omitted].
[45] [2018] SASCFC 90, (2019) SASR 491.
[46] [2018] SASCFC 90 at [44]-[45], (2019) SASR 491 at 504-505.
The judge relied upon the substance of the definition of “recklessly” in s 21 of the CLCA. It provides that a person is reckless in causing harm or serious harm to another if the person is aware of a substantial risk that his or her conduct could result in harm or serious harm and engages in the conduct despite the risk and without adequate justification. As the Court in Shah held, the definition of “recklessly” in s 21 does not in terms apply to s 29. It applies to ss 23 and 24.
Shah stands as authority for the proposition that s 29(1)(b), insofar as it refers to reckless indifference, requires that an accused knows that it is likely that his or her conduct will endanger the life of another but engages in the conduct despite that knowledge. The Court treated the requirement for knowledge of likelihood as a more onerous requirement than knowledge of substantial risk.
On this appeal the respondent sought to distinguish s 29(2) and (3) from s 29(1). The respondent submits that the meaning of reckless indifference in s 29(1) is not applicable to offences of creating risk of serious harm and creating risk of harm in ss 29(2) and (3). The respondent contends that the Court in Shah acknowledged that reckless indifference may focus on different levels of risk depending on context. In the context of considering whether the test for “recklessly” in s 21 could or should apply to an offence against s 29(1) the Court acknowledged that offences involving the endangerment of life cannot be assumed to be treated the same as offences involving the causation of harm. In Shah the Court approached the construction of s 29(1) as a whole so that the requirement that the accused knew that the act was likely to endanger life was consistent with the knowledge required for reckless indifference as to the actus reus. The Court held that the state of knowledge for reckless indifference could not be determined without reference to the state of knowledge required by s 29(1)(a). The respondent submits that the actus reus for an offence against s 29(1) differs from the actus reus required for ss 29(2) or (3). Therefore it cannot be assumed the other elements of ss 29(1) will automatically be the same for the offences found in ss 29(2) or (3). It is necessary to consider the actus reus and whether any incongruity arises as between the directions concerning the actus reus and the directions concerning reckless indifference. The direction given by the judge as to the actus reus, namely, “an act which was likely to have caused harm to another”, which was explained as an act that “creates a real or substantial risk of harm, as opposed to a fanciful or remote risk or a risk contingent upon the occurrence of some unsubstantiated conduct or speculative circumstance or event that is yet to exist or of which there is no immediate prospect”, was consistent with the subsequent direction that reckless indifference is satisfied by the appellant being aware that his conduct gave rise to a substantial risk of harm “and aware of that substantial risk of harm, decided to engage in the relevant conduct nevertheless”. The respondent submits that for the purposes of s 29(2) and (3) the word “likely” is synonymous with the creation of a substantial risk.
There are three elements to the offence created by s 29(3). The first is that a person, without lawful excuse, does an act or makes an omission that is likely to cause harm to another. The second is that he or she does so knowing that the act or omission is likely to cause harm to another. The third is that the person does so either intending to cause such harm or being recklessly indifferent as to whether such harm is caused.
Section 29(3) presents some difficulty of interpretation. There are two parts to the mens rea of the offence. They are found in the second and third elements of the offence. In performing the actus reus the accused must know that his or her conduct was likely to cause harm. But this is not enough. In performing the actus reus the accused must also intend, or be recklessly indifferent, as to whether such harm is caused.
I agree with the Chief Justice that in the context of s 29(3) the alternative requirement that the accused is recklessly indifferent as to whether such harm is caused requires foresight of the likelihood of that harm occurring. This follows from the reasoning in Shah that s 29 must be given a coherent construction when read as a whole.
However, in this context I would construe the requirement in s 29(3), that the accused knew that the act or omission is likely to cause harm, consistently with the analysis of the plurality in Boughey v The Queen[47] who, in considering a comparable provision,[48] held that the word “likely” was used in its ordinary meaning, namely, to convey the notion of a substantial i.e. a real and not remote chance regardless of whether that chance was more or less than 50 per cent. It was not construed to mean more likely than not or to assume a specific degree of mathematical probability.[49]
[47] (1986) 161 CLR 10.
[48] Section 157(1)(c) Criminal Code (Tas.) provided that culpable homicide was murder if committed by means of an unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person.
[49] (1986) 161 CLR 10 at 21.
In Nelson v Police[50] Doyle CJ, in considering an appeal against a conviction pursuant to s 29(3), held that the concept of “being recklessly indifferent” for the purposes of s 29(3)(b) has the meaning given to the word “recklessly” by s 21 notwithstanding that s 21 did not apply directly to s 29. Doyle CJ said that without reference to s 21 he would have interpreted s 29(3)(b) as referring to, or as requiring proof of, conduct giving rise to a probability of harm or substantial risk of harm, and awareness of that probability or substantial risk of harm, and a decision to engage in the relevant conduct nevertheless.[51]
[50] [2011] SASC 55.
[51] [2011] SASC 55 at [6].
The Court in Shah did not refer to the reasons of Doyle CJ in Nelson. It appears Nelson was not brought to its attention. To my mind the reasoning in Nelson is logical, consistent with the authority of Boughey and the underlying principles by which the Parliament has fixed criminal liability for the inchoate offences in s 29 both in relation to the actus reus and the mens rea. In the circumstances, I do not consider there was any misdirection by the judge. I accept the respondent’s submission that for the purpose of s 29(3) “likely” is synonymous with the creation of a “substantial risk”. The Court in Shah erred in so far as it treated knowledge of likelihood and knowledge of substantial risk as different. That reasoning is contrary to Boughey. The failure of the Court in Shah to refer to Boughey suggests it decided the appeal per incuriam. In the circumstances, I think that Shah calls for reconsideration. To the extent that it treats knowledge of likelihood for the purpose of s 29(3) as different from knowledge of substantial risk, it should not be followed.
The judge’s direction accurately conveyed the nature of the requisite mental element for proof of the offence. There was no misdirection.
I would dismiss ground 2.
Ground 1
The appellant submits that he was not, as a matter of law, guilty of an offence against s 29(3) for two reasons. First, on the basis that the act of driving a van towards Constable Walker did not, in the circumstances that existed, make it likely that harm would be occasioned to him. It is contended that it was not likely any harm would be caused because when Constable Walker saw the appellant’s van he was three metres from the van and when the van struck the gates, Constable Walker jumped into the alcove, the van was in fact stopped or impeded by the gates such that any risk of harm was purely hypothetical and that by the time the van passed Constable Walker he was well out of the way and in the relative safety of the alcove. Second, the judge found that it was likely the appellant’s act would cause harm to Constable Walker only by having regard to hypothetical scenarios in which there may have been a collision between the van and Constable Walker which necessarily assumed that, had that hypothesis eventuated, the appellant would have made a conscious and voluntary future decision to drive into Constable Walker. The appellant contends that it is not open when considering a charge pursuant to s 29(3) to have regard to possible occurrences or possible future events when assessing the likelihood of harm being caused to someone. The relevant enquiry is whether the act actually committed by the accused in the circumstances in which it was committed, carried an inherent likelihood of causing harm to another.
The first submission proceeds from a false premise. There was no evidence that Constable Walker was in the alcove at the time the van hit the gates and the judge did not so find.
The second submission is misconceived. It relies upon the reasoning of the Victorian Court of Appeal in R v Abdul-Rasool,[52] but as Doyle CJ pointed out in Nelson,[53] in deciding whether the driving in question in that case was likely to cause harm, it is a relevant consideration that the assessment of the likelihood of harm depends upon conduct that might have occurred but did not occur. That consideration might, or might not, in particular circumstances, cause one to conclude that a real or substantial risk of harm is not made out. But it is not the case that one cannot have regard at all to such conduct.
[52] [2008] VSCA 13, (2008) 18 VR 586.
[53] [2011] SASC 55 at [17].
Abdul-Rasool is clearly distinguishable. That was a case where the appellant went to a meeting at her daughter’s school. She was distressed. She met with the deputy principal and an interpreter. The appellant poured a can of petrol over herself. She had a cigarette lighter which she put by her side. She said she was going to burn the school and the others in the room. She did not do so. She was subdued without any harm being caused. On appeal the Court held that the appellant did not create an appreciable risk of death to anyone. It was not permissible for the purposes of proving the offence to take into account the possibility of the appellant carrying out a further voluntary act, namely, setting fire to herself, to establish the offence. The voluntary act of igniting the petrol would not in any sense be a consequence of the act of pouring petrol on herself. The Court held that further act would occur only as a matter of choice and not as a mere consequence of the first act. Redlich JA said:[54]
The applicant’s possible further acts — reaching for her matches or lighter and proceeding to ignite herself — were neither inevitable nor contemporaneous effects of the conduct actually engaged in. That is to say, the surrounding circumstance or consequences of the act performed do not encompass such a further act by the applicant.
[54] [2008] VSCA 13 at [33], (2008) 18 VR 586 at 594.
Redlich JA went on to observe that the real danger of death must arise from existing and not speculative circumstances.[55] His Honour further observed:[56]
In all these cases the conduct the subject of focus is confined to the “very” act performed by the accused and the circumstances in which that act occurred. There is no advertence to hypothetical or future conduct by the accused. The offence is intended to prohibit conduct that carries with it an appreciable risk of death.
[55] [2008] VSCA 13 at [42], (2008) 18 VR 586 at 596.
[56] [2008] VSCA 13 at [51], (2008) 18 VR 586 at 599.
As Doyle CJ noted, Abdul-Rasool was quite a different case from Nelson. In Abdul-Rasool the prosecution relied upon a further conscious or voluntary act by the appellant as part of the conduct endangering life. In this case, as in Nelson, the prosecution did not rely on “speculative circumstances” or “unsubstantiated conduct that has yet to exist”. The prosecution relied upon the circumstances of the appellant’s driving. The judge found that Constable Walker was standing on the driveway and in close vicinity of the gates as the accused accelerated the van towards the gates.[57] The judge further found that as the appellant drove the van into and over the gate he only narrowly missed colliding with Constable Walker as he took evasive action.[58] The judge found that the accused accelerated the van at speed into the gates at a time when Constable Walker was on the driveway and close to the gates. The accused drove at sufficient speed to do considerable damage to the gates.[59]
[57] [2018] SADC 146 at [54](a).
[58] [2018] SADC 146 at [54](c).
[59] [2018] SADC 146 at [56].
In this case there is no error in the judge’s finding that a contravention of s 29(3) was proved. The only available inference from the evidence was that the appellant drove the van at the gates with the intention of bursting through them or flattening them. Either result was necessarily intended as the appellant was seeking to effect an escape from the property. Given the judge’s finding that Constable Walker was on the driveway and close to the gates and that the appellant only narrowly missed colliding with him, the conclusion that the appellant drove the van at the gates knowing that this act was likely to cause harm to Constable Walker and that the appellant was recklessly indifferent as to whether harm was caused, was open on the evidence. No error has been demonstrated.
I would dismiss ground 1.
Conclusion
I would dismiss the appeal.
NICHOLSON J: I agree that the appeal should be dismissed. I agree with the reasons of the Chief Justice concerning appeal ground 2 and with the reasons of Stanley J concerning appeal ground 1.
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