Findlay v NT of Australia - [2000] NTSC 78

Findlay v NT of Australia & Others [2000] NTSC 78
PARTIES:KIM JEANETTE FINDLAY

v
NORTHERN TERRITORY OF AUSTRALIA
and
DUNCAN JOHN HUGH McKENZIE as Litigation Guardian for ALISON McKENZIE
and
PATRICIA ANN McKENZIE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:LA 16 of 2000 (9906103)
DELIVERED:  19 September 2000
HEARING DATES:  22 August 2000
JUDGMENT OF:  THOMAS J
CATCHWORDS:

APPEAL – APPEAL FROM MAGISTRATE
Appeal – appeal from Magistrate – whether jury would find respondent guilty of an offence – assistance certificate – injury caused by or arises out of – use of motor vehicle – offence under the Criminal Code – breach of duty under the Criminal Code – whether subjective knowledge or understanding – appeal dismissed
Criminal Code Act 1983 (NT), s 38 (2), s 151, s 153 and s 154; Crimes (Victims Assistance) Act 1982 (NT), s 12.
Coulton v Holcombe (1986) 162 CLR 1; University of Wollongong v Metwally [No 2] (1985) 60 ALR 68; cited.
Sanby v The Queen (1993) 117 FLR 218; considered.
Volz v The Queen (1990) 100 FLR 393; referred to.
REPRESENTATION:
Counsel:
Appellant:J Lewis
First Respondent:  M Grant
Solicitors:
Appellant:David Francis & Associates
First Respondent:  Halfpennys
Judgment category classification:        C
Judgment ID Number:  tho200023
Number of pages:  10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Findlay v NT of Australia & Others [2000] NTSC 78
No. LA 16 of 2000 (9901603)

BETWEEN:
KIM JEANETTE FINDLAY

Appellant
AND:
NORTHERN TERRITORY OF AUSTRALIA

First Respondent
AND:
DUNCAN JOHN HUGH McKENZIE as Litigation Guardian for ALISON McKENZIE

Second Respondent
AND:
PATRICIA ANN McKENZIE

Third Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 19 September 2000)

This is an appeal from a decision of a stipendiary magistrate sitting in the Local Court in Darwin. The grounds of the appeal are as follows:

1.That the learned magistrate erred in law in failing to find on the balance of probabilities that a properly instructed jury would have found the third respondent, or, alternatively, the second respondent, guilty of an offence under section 154 of the Criminal Code Act 1983 (NT), thereby entitling the appellant to an Assistance Certificate under the provisions of the Crimes (Victims Assistance) Act 1982 (NT).
2.That the learned stipendiary magistrate erred in that he failed to direct himself properly or at all that the Crimes (Victims Assistance) Act s 12(e) provides for the issue of an Assistance Certificate to an applicant pursuant to its provisions where injury to the applicant is caused by or arises out of any use of a motor vehicle which constitutes an offence under the Criminal Code.

The appellant seeks the following orders:
1.That the judgment of the Local Court delivered 4 May 2000 in Local Court proceeding number 9906103 in favour of the respondent, dismissing the appellant’s claim for an Assistance Certificate pursuant to the provisions of the Crimes (Victims Assistance) Act be set aside.
2.That the matter be remitted to the Local Court for an assessment of damages in favour of the appellant pursuant to the Crimes (Victims Assistance) Act.
3.That the respondent be ordered to pay the appellant’s costs of and incidental to the within Notice of Appeal.
The appellant carried the evidentiary and affirmative onus of proof on the balance of probabilities in the Local Court of all matters of fact in the application.
The learned stipendiary magistrate made the following finding of fact on 4 May 2000 (t/p 2 – 3):
“The facts, on 18 March 1998 at about 1.46 pm, Mrs Findlay was seated on the walkway outside shop 3 Coolalinga Shopping Centre. At that time, she was the proprietor of shop 3. The walkway at that time was approximately 2 metres wide and faced onto a carpark. The carpark is approximately 6 inches below the level of the walkway. In the area immediately in front of the walkway were a number of trees and other shrubs that are planted on the edge of the carpark. Whether there are any shrubs or trees between the carpark and the point where Mrs Findlay was seated, I cannot find.
She witnessed a young girl walk up to a Subaru motor vehicle Northern Territory registration TDP111. ….. The Subaru was parked in the carpark directly in front of where she was sitting on the walkway. She saw the child put her hand through the window of the motor vehicle and start the car. The car then lunged forward, and to use Mrs Findlay’s words, ‘Smashed me through the plate glass window’.
The motor vehicle was registered in the name of Duncan John McKenzie. The young girl who started the vehicle was Alison McKenzie who was then aged 12 years. She was the step-daughter of Duncan John McKenzie. Subsequent police inquiries revealed that the child’s mother, Patricia Anne McKenzie, had given the child, Alison, the keys to the motor vehicle and requested that the child start the motor vehicle.
The purpose in having the child start the motor vehicle was to activate the air-conditioning unit in order to cool the vehicle preparatory to re-entry of the vehicle by the child’s mother and the mother’s baby.
Mrs Findlay suffered bruising to the right thigh. Subsequently complications arose, the bruising was drained, fat and tissue died. Eventually, a large amount of fat and, indeed, tissue was excised leaving a gaping hole in her right thigh. That hole has subsequently resolved into unsightly scarring.
I pause here. I infer, and I am satisfied on the balance of probabilities that the motor vehicle was left in gear when it was parked. The motor vehicle was in gear and when the starter motor was activated by Alison McKenzie, the end result was that the vehicle moved forward. It mounted a rise of about 6 inches from the carpark to the walkway and moved a distance of about 2 metres across the walkway in the course of which, Mrs Findlay was struck.
The child, Alison McKenzie, was standing outside the vehicle when she started the vehicle. What she did when the vehicle moved forward, I cannot say. Whether she ran alongside the vehicle still touching the keys or whether she remained stationary, I cannot say. If she took her hand from the keys …… when the vehicle moved forward and why the vehicle did not stop, because the key mechanism sprang back from the starter motor position, I cannot say. Now, whether the motor vehicle ploughed through the trees or shrubs ….. prior to striking Mrs Findlay, I cannot say.”
There is no issue taken by either the appellant or the respondent with these findings of fact. The findings were largely based on evidence provided by the appellant. Neither the second or third respondent gave evidence.
It is appropriate to note here that the second and third respondent were not present or represented on the appeal. I raised this issue at the commencement of the appeal. Mr Lewis, counsel for the appellant, subsequently telephoned Mr Jobson, solicitor for the second and third respondent. Mr Lewis advised me that he was informed by Mr Jobson that Mr Jobson had obtained instructions from his client, the second and third respondent, that they did not wish to attend the hearing of the appeal or to be represented at such hearing. Accordingly, I proceeded to deal with the appeal in their absence.
It is relevant to set out the provisions of s 154(1) of the Criminal Code:
“Any person who does or makes any act or omission that causes serious danger, actual or potential, to the lives, health or safety of the public or to any person (whether or not a number of the public) in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger and not have done or made that act or omission is guilty of a crime and is liable to imprisonment for 5 years.”
Also relevant is s 12(e) of the Crimes Victims Assistance Act:
“The Court shall not issue an assistance certificate –
(e)in respect of an injury or death caused by, or arising out of, the use of a motor vehicle except where that use constitutes an offence under the Criminal Code.”
The learned stipendiary magistrate made the following findings with respect to the second respondent (t/p 4):
“So far as the act and omission of the child is concerned, the applicant has to establish that an offence under the Criminal Code has been committed. In the case of a child under the age of 14 years, the applicant has to establish on the balance of probabilities that the child was criminally responsible; that is, the child ….. had the capacity to know that she ought not to do the act or make the omission, see section 38(2) of the Criminal Code.”
The applicant has not discharged the onus that reposes in her. …”
In the arguments to this Court on appeal the appellant did not seek to challenge that finding.
The appeal proceeded on the basis of His Worship’s decision in respect of the third respondent. In reviewing the evidence before him, the learned stipendiary magistrate found in summary that he was not satisfied on the balance of probabilities that a crime pursuant to s 154 of the Criminal Code had been committed by the third respondent. Essentially, the reason for this conclusion was because the learned stipendiary magistrate had no material before him on which to make an assessment of that element of the offence contained in the words “in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger and not have done or made that act or omission.”
The learned stipendiary magistrate noted that he had no evidence as to the knowledge or experience of the second respondent, a 12 year old girl, in starting a motor vehicle for the purpose requested by her mother, the third respondent. The learned stipendiary magistrate enumerated a number of other matters on which there was no evidence, including the propensity of the Subaru when started in gear, whether the vehicle was defective, the knowledge of the third respondent including her knowledge as to the vehicles propensity and any possible defects to the vehicle.
Mr Lewis, on behalf of the appellant, submitted that Division 1 of Part VI of the Criminal Code was not drawn to the attention of the learned stipendiary magistrate and was not taken into consideration by the magistrate in his determination on the issue of whether an offence under s 154 of the Criminal Code had been committed. The relevant provisions of Division 1 of Part VI of the Criminal Code which Mr Lewis argues were relevant to the learned stipendiary magistrate’s consideration were s 151 which provides as follows:
“Duty of person in charge of things applied to a dangerous purpose
It is the duty of every person who manages, uses or has in his possession anything that when so managed, used or had in possession may, in the absence of reasonable care and reasonable precautions, endanger the life, safety or health of another to use reasonable care and take precautions to avoid such danger.”
and s 153 which provides:
“Effect of breach of duty
A person who omits to perform any duty imposed upon him by this Division is held to have caused any consequences to the life or health of any person to whom he owes the duty by reason of such omission, but whether or not he is criminally responsible therefor is to be determined by the other provisions of this Code.”
Mr Grant, counsel for the respondent, submits that a point cannot be raised for the first time on appeal where, had it been raised at first instance, evidence may have been led to prevent it succeeding: see Coulton v Holcombe (1986) 162 CLR 1 at 7; University of Wollongong v Metwally (No. 2) (1985) 60 ALR 68 at 71.
I do not find it necessary to rule on that point because I agree with the further submission made by Mr Grant that the provisions of s 151 and s 153 within Division 1 of Part VI of the Criminal Code do nothing more than establish a duty. They create no offence. They do not supplant or displace the elements of the offence established by s 154. Whether the breach of such duty constitutes a criminal offence falls to be determined wholly by reference to those provisions of the Northern Territory Criminal Code creating offences in this case specifically s 154. Even if there were a breach of the duty created by the sections in Division 1 of Part VI it would still fall to determine whether an offence had been proved on the balance of probabilities when considering the elements of s 154 of the Criminal Code.
I agree with the submission by counsel for the respondent that the question of whether there was an offence committed on the balance of probabilities under s 154 of the Criminal Code is not satisfied by establishing a breach of duty imposed by s 151. See also s 153.
The learned stipendiary magistrate was not required to make a finding as to whether there was such a breach of duty and I do not consider anything turns on the fact that these provisions in Division 1 of Part VI of the Criminal Code were not drawn to the attention of the learned stipendiary magistrate and that he made no finding in respect of them.
Mr Lewis, counsel for the appellant, submitted that proof of subjective knowledge or understanding on the part of the third respondent that she was in breach of a particular duty or duties created by the Code is immaterial for the constituting of an offence against s 154 of the Criminal Code for present purposes. Mr Lewis further submitted that the third respondent was in breach of a duty. He argued that thereafter the elements of s 154 (using an objective test, arrived at on the balance of probabilities) were satisfied and the learned stipendiary magistrate should have concluded that an offence under s 154 was constituted by the use of the vehicle by the second and third respondent against the appellant.
I consider the learned stipendiary magistrate was correct in having regard to the lack of evidence as to the knowledge, circumstances and experience of the third respondent when considering “an ordinary person similarly circumstanced” (Sanby v The Queen (1993) 117 FLR 218 Mildren J at 232):
“… The test to be applied is that of the ‘ordinary person similarly circumstanced’: cf s 31(2) of the Code. This is another indication that the proper test is a higher one than the standard of care of the reasonable man on the Clapham omnibus. The test of the ‘ordinary man similarly circumstanced’ who must ‘clearly’ foresee the risk, is an indication that the section intends to make allowance for ordinary human fallibility – the sort of common place errors of judgment and inadvertent acts of carelessness that happen because the risk is outside of normal human experience, because the wrongdoer's attention is distracted, because the wrongdoer makes the wrong choice when confronted with the need for sudden decision, or because of other similar factors. But to say that is not to substitute a different test from that required by the section. The jury must be satisfied beyond reasonable doubt that the act or omission caused serious danger to the life, health or safety of some other person in circumstances where an ordinary person, similarly circumstanced to the appellant, would clearly have foreseen such danger and not have done or made that act or omission. In applying that test, the jury must take into account all of the circumstances that the appellant found himself in as well as take into account the age, experience and level of skill of the appellant in whatever he was engaged in, if relevant to the foreseeability of danger by the act or omission in question. …..”
There being no evidence going to the element of the offence encompassed in the words “ordinary person similarly circumstanced would clearly have foreseen such danger and not have done that act” the magistrate was correct in his conclusion that he could not be satisfied an offence under s 154 of the Criminal Code had been established on the balance of probabilities.
I agree with the further submission made by Mr Grant on behalf of the respondent that the fact the injury occurred in the circumstances although tragic, provides no proof of negligence within s 154 of the Criminal Code. “The doctrine of res ipsa loquitor has no place in the criminal law” Volz v The Queen (1990) 100 FLR 393 Martin J at 404.
I have concluded that the learned stipendiary magistrate was correct in concluding that he did not have sufficient evidence to be satisfied on the balance of probabilities that an offence under s 154 of the Criminal Code had been proved.
Accordingly the appeal is dismissed.

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