Filz v Knox - [2002] TASSC 82

[2002] TASSC 82

CITATION: Filz v Knox [2002] TASSC 82

PARTIES:  FILZ, Roger Christopher
  v
  KNOX, Anthony

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Appellate
FILE NO/S:  LCA 4/2002
DELIVERED ON:  3 October 2002
DELIVERED AT:  Hobart
HEARING DATES:  3 October 2002
JUDGMENT OF:  Crawford J

(Edited version of oral reasons)

CATCHWORDS:

Traffic Law - Offences - Particular offences - Negligent driving - Causing death by negligent driving - Whether criminally culpable negligence needed to be proved.
Traffic Act1925 (Tas), s32(2A).

Fehlberg v Gallahar [1957] Tas SR 286; Robertson v Watts 51/1964; Price v Fletcher [1972] Tas SR 35, applied.
Aust Dig Traffic Law [48]

REPRESENTATION:

Counsel:
           Applicant:  F C Neasey
           Respondent:  O P Holdenson QC and G A Richardson
Solicitors:
           Applicant:  Director of Public Prosecutions
           Respondent:

Judgment Number: [2002] TASSC 82
Number of Paragraphs: 9

Serial No 82/2002
File No LCA 4/2002

ROGER CHRISTOPHER FILZ v ANTHONY KNOX

REASONS FOR JUDGMENT CRAWFORD J
(DELIVERED ORALLY) 3 October 2002

The respondent was charged on a complaint with two counts of causing death by negligent driving, contrary to the Traffic Act 1925, s32(2A). It was alleged that on 4 January 2001, he drove a motor vehicle negligently on the Guildford Hampshire Main Road, thereby causing the death of Glen John Harman and Mietta (Maria Fernanda) O'Donnell.

The particulars of negligent driving were the same on each charge and there were five of them. It is common ground that once the evidence had concluded, the prosecution case depended entirely on establishing particular (a) and that what was contained in particulars (b), (c), (d) and (e) were merely consequences of what was alleged in particular (a). Particular (a) was that the respondent failed to keep a proper lookout by leaving the travelled portion of the roadway and driving on the gravel verge to the left of the bitumen. Before me the parties were in agreement that the magistrate found that he was not satisfied beyond reasonable doubt that there was a failure to keep a proper lookout. In my view, once that finding was made by the learned magistrate then, regardless of the test he applied for negligent driving, his Worship had to dismiss the complaint.

There is merit in grounds 1 and 2 of the motion to review. They attack the determination of the learned magistrate that the test for negligence was contrary to the test as submitted by both parties, and contrary to the test articulated by judges of this Court. His Worship held that because an ingredient of the offence is that the negligent driving caused death, it must be proved that the negligence was culpable.

That is the test for manslaughter under the Criminal Code when negligence is alleged to have caused death. It has never been the test for negligent driving under the Traffic Act and I reject any suggestion that Parliament intended, when it inserted the offence of causing death by negligent driving into the Act in 2000, a new test for negligence was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Filz v Knox

Details

AGLC: Filz v Knox [2002] TASSC 82
Case: [2002] TASSC 82
Decision Date: 3 October 2002

CaseChat Overview and Summary

The Supreme Court of Tasmania heard an appeal by Roger Christopher Filz against Anthony Knox in the case of Filz v Knox. The respondent, Anthony Knox, was charged with two counts of causing death by negligent driving under the Traffic Act 1925, s32(2A). The charges stemmed from an incident on 4 January 2001 where Knox allegedly negligently drove a motor vehicle on the Guildford Hampshire Main Road, resulting in the deaths of Glen John Harman and Mietta (Maria Fernanda) O'Donnell. The prosecution presented five particulars of negligent driving, with the case hinging on particular (a), which alleged that Knox failed to keep a proper lookout and drove on the gravel verge to the left of the bitumen. The magistrate found that there was no failure to keep a proper lookout, leading to the dismissal of the complaint. Filz appealed, arguing that the magistrate applied an incorrect test for negligence.

The primary legal issue before the court was whether the magistrate had correctly applied the test for negligence in the context of causing death by negligent driving. The court examined whether the magistrate had erred in applying a test for culpable negligence, which is relevant to manslaughter under the Criminal Code, instead of the correct test for negligence under the Traffic Act. The court also considered whether the magistrate's error led to a substantial miscarriage of justice.

Crawford J concluded that the magistrate had indeed applied the wrong test for negligence, as the requirement for culpable negligence does not apply to the offence of causing death by negligent driving under the Traffic Act. The judge held that the magistrate should have applied the consistent line of authority from previous cases such as Fehlberg v Gallahar [1957] Tas SR 286, Robertson v Watts 51/1964, and Price v Fletcher [1972] Tas SR 35, which did not require culpable negligence for negligent driving. However, the court found that even though the magistrate erred in applying the test for negligence, no substantial miscarriage of justice had occurred. The magistrate's finding that Knox was not negligent in failing to keep a proper lookout was reasonably open on the evidence, leading to the inevitable dismissal of the complaint.

The court dismissed the motion to review and upheld the magistrate's decision, finding that no substantial miscarriage of justice had occurred despite the error in applying the test for negligence. The motion was dismissed, and the original decision to dismiss the complaint against Anthony Knox was affirmed.

Orders