George v The Queen
[2017] VSCA 152
•22 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0196
S APCR 2016 0228
| NICHOLAS GEORGE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | ASHLEY and PRIEST JJA, and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 May 2017 |
| DATE OF JUDGMENT: | 22 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 152 |
| RULING APPEALED FROM: | DPP v George (Unreported, County Court of Victoria, Judge McInerney, 9 June 2016 (Conviction), 1 September 2016 (Sentence)) |
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CRIMINAL LAW — Application for leave to appeal — Conviction — Culpable driving causing death and dangerous driving causing death — Alternative offences under ss 318 and 319 of the Crimes Act 1958 — Application of s 422A(1) of the Crimes Act 1958 — Whether judge misdirected jury as to sequence in which they should deliberate — Applicability of Stanton v The Queen (2003) 198 ALR 41 — Reference to ‘merited criminal punishment’ — King v The Queen (2012) 245 CLR 588 applied — Application granted — Appeal dismissed.
CRIMINAL LAW — Application for leave to appeal — Sentence — Sentence of 12 years’ imprisonment with non-parole period of seven years and six months on two charges of culpable driving causing death — Whether deceased driver’s conduct relevant to applicant’s culpability — Whether sentence manifestly excessive — Whether fresh evidence of applicant’s medical condition — Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Gyorffy QC and Mr P A D’Arcy | Galbally Rolfe |
| For the Respondent | Mr D Trapnell QC and | Mr J Cain, Solicitor for Public Prosecutions |
ASHLEY JA:
I respectfully agree with Priest JA that, for the reasons which he gives, the application for leave to appeal against conviction should be granted on ground 5, but the appeal dismissed, and that the application for leave to appeal against sentence be refused. I have nothing to add with respect to the sentence application. I add the following with respect to the application for leave to appeal against conviction.
First, senior counsel for the applicant sought to make something of the fact that the applicant’s motor vehicle only clipped the vehicle driven by Mr Beardsmore. That is, there was no heavy collision. But there was no point to be made. At the time of the collision, the two vehicles were travelling at 150 kilometres per hour or thereabouts. The applicant’s vehicle had been travelling very close to the rear of Mr Beardsmore’s vehicle. At that speed, any contact between the vehicles was highly likely to produce the catastrophic outcome which in fact ensued. The applicant’s driving bespoke gross negligence, regardless that contact between the vehicles was slight.
Second, applicant’s counsel pressed a submission that Mr Beardsmore’s car had moved to its left as the applicant’s vehicle was attempting to pass it on the left hand side, this bringing about the collision. Counsel referred to Katie Tweedly’s evidence that the left indicator light on the applicant’s vehicle was operating shortly before the collision. He referred to the evidence of Angela Roane that, observing the two vehicles behind her very shortly before the collision, it appeared that the applicant’s vehicle was trying to overtake Mr Beardsmore’s vehicle on its left hand side, and it appeared that the latter vehicle was also moving to its left. Perhaps he sought to rely also upon the evidence of Margaret Veal that she observed the applicant’s vehicle veer toward the left and clip Mr Beardsmore’s car.
Whilst there was some direct evidence that the applicant’s vehicle attempted to pass Mr Beardsmore’s vehicle on its left hand side, and slight evidence that Mr Beardsmore’s vehicle moved to its left (contrast the evidence of Ms Roane and Ms Veal), there was no evidence that Mr Beardsmore’s vehicle ever moved out of the
right hand lane. Nor was there any evidence which might suggest that Mr Beardsmore’s vehicle slowed, as the applicant’s vehicle began to overtake it. Nor again was there any evidence that the collision occurred because, in the course of the applicant undertaking an overtaking manoeuvre on the left of the other vehicle, that other vehicle moved into the path of his vehicle.
The applicant’s own account of events, containing a number of apparent lies which bore upon his credibility, said nothing about a blinker or an overtaking manoeuvre. Rather, according to the applicant’s account, Mr Beardsmore, whose vehicle was travelling at a modest speed just like his own vehicle, had lost control of his vehicle, this causing the applicant to swerve to avoid it. There was no evidence, this account apart, that Mr Beardsmore had in fact lost control of his vehicle.
I do not accept that it was open to the jury to infer that the scenario advanced by applicant’s counsel represented the fact. But suppose that such an inference was open. What would then be entailed was an overtaking manoeuvre undertaken by the applicant, starting from a position very close behind Mr Beardsmore’s vehicle, the two vehicles travelling at 150 kilometres per hour or thereabouts. The prospect, the applicant’s vehicle being driven in this way, of it avoiding contact with Mr Beardsmore’s vehicle if the latter made any deviation to its left, was non-existent. Gross negligence by the applicant in driving his vehicle would not at all be gainsaid on that scenario.
For these reasons, as well as for the circumstances fully described by Priest JA, the applicant comprehensively failed to establish that his conviction entailed a substantial miscarriage of justice.
PRIEST JA:
Convictions, sentences and grounds of appeal
The applicant faced trial in the County Court on an indictment containing two
charges of culpable driving causing death, contrary to s 318(2)(b) of the Crimes Act 1958.[1] It was alleged that the applicant at Dromana on 17 November 2014 by the culpable driving of a motor car caused the death of Adam Beardsmore (charge 1) and Daniel Hay (charge 2) in that the applicant ‘drove the said motor vehicle negligently’.
[1]Section 318(1) of the Crimes Act 1958 provides that any person ’who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both’. Several forms of culpability are set out in s 318(2). Subsection 318(2)(b) provides:
(2) For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle—
…
(b)negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; …
At the conclusion of the prosecution case, the applicant tendered an Admission of Fact, Exhibit 2, in which he admitted that at Dromana on 17 November 2014, ‘by driving a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances of the case’, he respectively caused the deaths of Adam Beardsmore and Daniel Hay.[2] In the result, dangerous driving causing death[3] was left to the jury as an alternative to both charges of culpable driving.
[2]See fn 22 below.
[3]Dangerous driving causing death is an offence by virtue of s 319(1) of the Crimes Act 1958:
319 Dangerous driving causing death or serious injury
(1) A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).
On 9 June 2016, the jury found the applicant guilty of both charges of culpable driving. There was thus no occasion to take verdicts on the statutory alternative. [4]
[4]Section 422A(1) of the Crimes Act 1958 provides:
422A Alternative verdict for certain charges relating to driving
(1) If on the trial of a person charged with an offence against section 318 (culpable driving causing death) the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that he or she is guilty of an offence against section 319(1) (dangerous driving causing death), the jury may acquit the accused of the offence charged and find him or her guilty of the offence against section 319(1) and he or she is liable to punishment accordingly.
Thereafter, on 1 September 2016, the trial judge sentenced the applicant to be imprisoned for 12 years, with a non-parole period of seven years and six months, according to the following table:
Charge Offence Sentence Cumulation 1 Culpable driving causing death 8 years Base 2 Culpable driving causing death 8 years 4 years Total effective sentence 12 years’ imprisonment Non-parole period 7 years and 6 months’ imprisonment Other orders · Driver licence cancelled and disqualified for 10 years, pursuant to s 89(1) of the Sentencing Act 1991
· Forensic sample order, pursuant to s 464ZF of the Crimes Act 1958
The applicant seeks leave to appeal both against conviction and sentence.
With respect to conviction, the applicant relies on five grounds as follows:
1. The learned Trial Judge erred in directing the jury that they must consider the charges of culpable driving on the Indictment and reach a verdict on them before considering the alternate [sic] charges of dangerous driving causing death.
2. The learned Trial Judge erred in that he failed to direct the jury adequately or at all as to the difference between the elements of culpable driving and dangerous driving causing death.
3. The learned Trial Judge erred in that he failed to direct the jury that they must consider the driving of Mr Beardsmore together with that of [the applicant] in determining culpability of [the applicant] for the events that occurred and determining whether the appropriate charges were culpable driving or dangerous driving causing death.
4. The learned Trial Judge erred in law in permitting the statements of [the applicant] in his record of interview concerning the cruise control to be used as a lie giving rise to an implied admission of guilt.
5. The learned Trial Judge misdirected the jury when he told them that they needed to find that ‘his conduct was so far short of that standard that it is deserving of criminal punishment’.
As to sentence, the applicant relies on four grounds:
1. The learned sentencing judge erred in considering as an alternative explanation of the events that the deceased driver was terrified from the way he was being pursued by the applicant and was hoping to out run the applicant.
2. The learned sentencing judge erred in law in finding that Mr Beardsmore was not complicit in culpable driving which resulted in his death and that of his passenger.
3. The learned sentencing judge imposed individual sentences and a total effective sentence that are manifestly excessive in the circumstances, the particulars of which are as follows:
a. The learned sentencing judge has assessed the culpability of the applicant as being too high in all the circumstances.
b. The learned sentencing judge gave too much weight to the applicant’s prior convictions.
c. The learned sentencing judge gave too little weight to the hardship to the applicant in all of the circumstances of the case.
d. The learned sentencing judge erred in not allowing exceptional hardship in respect of the applicant’s wife and children.
e. The learned sentencing judge has cumulated too great an amount from the second count in arriving at the total effective sentence resulting in a breach of the totality principal. If so affected, then the non-parole period needs to be reconsidered to bring it into balance with any new total effective sentence set.
4. The applicant should be resentenced in the light of fresh evidence:
a. relating to the effect of previous injuries sustained by the applicant in 1984 and referred to in the course of sentencing by the learned sentencing judge;
b. relating to further medical issues which have re-arisen since being in custody, because of the conditions in custody.
In my view, for the reasons that follow, leave to appeal against conviction must be granted on ground 5, but the appeal dismissed. I would otherwise refuse leave to appeal.
Further, the application for leave to appeal against sentence should, in my view, be refused, for the reasons I will later elaborate.
Background facts
It is necessary to summarise the essential facts.
The two charges of culpable driving arose out of a collision involving two vehicles — one driven by the applicant and the other driven by Adam Beardsmore — on the Mornington Peninsula Freeway at about 1.02 pm on Monday, 17 November 2014, at a point between the ‘on’ and ‘off’ ramps to Arthurs Seat Road.
At the relevant time, the applicant, aged 48 years, was driving a black Holden Crewman SS dual cab utility; and Adam Beardsmore, aged 23 years, was driving a blue Ford sedan, in which Daniel Hay, also aged 23 years, was a front seat passenger. Both vehicles were travelling at very high speed. It seems that the front of the applicant’s vehicle struck the rear of Mr Beardsmore’s vehicle, causing both vehicles to lose control and collide with trees in the centre median strip of the freeway. The vehicle driven by Mr Beardsmore sustained extensive damage to the front and rear and was engulfed in flames. Both Mr Beardsmore and Mr Hay suffered extensive injuries from which they died at the scene.
Mornington Peninsula Freeway runs generally in an east-west direction. There are two east bound, and two west bound, bitumen lanes, separated by a wide median strip which is heavily vegetated. The west bound lanes are divided by a broken white line. At the scene of the collision — between the ‘on’ ramp and ‘exit’ ramp for Arthurs Seat Road — the freeway is primarily flat with a slight rise and sweeping left hand bend. The speed limit is 100 kilometres per hour.
Shortly before the collision, the applicant’s black utility and Mr Beardsmore’s blue sedan were both seen to be travelling in the right west bound lane, the applicant’s vehicle being close behind Mr Beardsmore’s car. Other road users who gave evidence at trial described the speed of the vehicles as being 140, 150 or 160 kilometres per hour, and at least two suggested that the black utility was ‘pursuing’ the blue sedan. And it seems that the vehicles were driven at high speed, and in close proximity to each other, for a distance of three to four kilometres prior to the fatal collision.
Physical evidence established that the front of the black utility contacted the rear of the blue sedan. Opinion evidence from a collision reconstruction expert, Detective Robert Hay, put the speed of the applicant’s vehicle — depending on the method of calculation used — as either 152, or 155 or 157 kilometres per hour, at the time of collision, closely matching the eye-witness estimations.
A few hours after the collision, at 6.23 pm, the applicant was interviewed by police at the Alfred Hospital, he having obtained legal advice. Among other things, the applicant told police that:
· he was the driver of the black Holden utility at the time of the collision;
· he was driving to Rosebud to take a friend a food blender;
· he was taking his time to get there and was not in a hurry;
· he set the cruise control and was travelling at just under the speed limit of 100 kilometres per hour — he was ‘confident’ as to his speed — when he observed the blue Ford sedan travelling at about 105 kilometres per hour a few cars in front of him;
· the Ford lost control causing him to swerve to avoid it and to lose control of his own vehicle;
· the cruise control on his vehicle was still operating at the time of the collision; and
· he had sustained injuries to his head, shoulders, neck and lower back, and had sore wrists and legs.
The use of the expression ‘merits criminal punishment’ — conviction ground 5
It is convenient to turn first to ground 5 since, given this Court’s recent decision in Bouch[5] — which establishes that it is a misdirection to instruct a jury on gross negligence incorporating the expression ‘merits criminal punishment’ (or equivalent expressions)[6] — this ground must succeed, subject only to the question whether any miscarriage of justice occasioned by the relevant misdirection was ‘substantial’.[7]
[5]Bouch v The Queen [2017] VSCA 86 (Redlich, Weinberg, Whelan, Priest and Ferguson JJA) (‘Bouch’).
[6]Bouch, [1] (Redlich and Weinberg JJA); [72] (Whelan and Ferguson JJA); [135] (Priest JA).
[7]Criminal Procedure Act 2009, ss 276(1)(b) and (c).
Prior to his opening to the jury, the prosecutor in the applicant’s trial raised the desirability of avoiding the use of the expression ‘merits criminal punishment’ when directing the jury on the elements of culpable driving. In discussion with counsel, the trial judge said that he thought it ‘important that [the jury] understand the concept of gross negligence in a trial such as this’. The prosecutor then properly drew the judge’s attention to the Bench Notes[8] and to King,[9] and submitted that the judge ought to avoid use of the ‘merits criminal punishment’ formulation when directing the jury on gross negligence. Notwithstanding the prosecutor’s submissions, however, the judge said that he did not intend to vary the directions ordinarily given ‘on simply a minority view in the High Court’. In the judge’s view, a direction containing the impugned expression was ‘an appropriate manner in which to explain it to a jury to discriminate it from negligence in a civil term’.
[8]Judicial College of Victoria, Victorian Criminal Charge Book, [7.2.8.1] (Bench Notes: Culpable Driving Causing Death).
[9]King v The Queen (2012) 245 CLR 588 (‘King’).
Accordingly, when charging the jury on the elements of culpable driving, the judge directed the jury in terms that subsequently were deprecated in Bouch. Thus, he instructed the jury that:[10]
Gross negligence means driving a motor vehicle in a way that one, fell so far short of the standard of care which a reasonable person would have exercised in the circumstances and by that driving, created such a high risk of death or serious injury that such driving merits criminal punishment. Just to add, the word gross in these circumstances means glaring, flagrant or outrageous.[[11]]
…
For this element to be proved, that is gross negligence, you members of the jury, in regard to each of Charges 1 and 2 on the indictment, must find beyond reasonable doubt that a reasonable person in the accused’s situation, that is driving that car, would have realised that his driving created a high risk of death and serious injury. You must also find beyond reasonable doubt that when compared against the standard of care that a reasonable person would have exercised in the circumstances, his conduct was so far short of that standard that it is deserving of criminal punishment.
…
… You must be satisfied beyond reasonable doubt that the driving in this instance was grossly negligent, in the terms as defined there. That is, that the driving, in totality, taking account of all the circumstances, looking at the definition that I have given you, falls so far short of the standard of care which a reasonable person, and you determine that standard on behalf of the community, would have exercised in the circumstances and created such a high risk of death or serious injury that such driving merits criminal punishment.
[10]Emphasis added. See also [53] et seq below.
[11]In R v Lucas [1973] VR 693, 701, Newton J and Norris AJ opined that the word ‘gross’ in s 318(2)(b) has the meaning of ‘glaring, flagrant, monstrous’; although in R v Stephenson [1976] VR 376, 382–3, Young CJ, Nelson and Harris JJ suggested that resort to the synonyms ‘glaring, flagrant, monstrous’ generally is unnecessary and may be unwise. See Bouch, [102]–[103] (Priest JA).
Although the judge cannot be criticised for giving what were, prior to Bouch, conventional directions, given that he employed the expression ‘merits criminal punishment’ (and ‘deserving of criminal punishment’) when directing on gross negligence, it must be concluded that the jury were misdirected. The complaint embodied in ground 5 is therefore made out.
Counsel for the applicant, in the Amended Written Case for the Applicant, submitted that the approach to directions that I suggested in Bouch should in future be adopted.
In Bouch, I expressed the following view as to the directions appropriate to be given in a case of culpable driving by gross negligence:[12]
In the future, therefore, in my opinion a jury trying a charge under s 318(2)(b) ought be directed that, for the purposes of culpable driving causing death by gross negligence, a person drives negligently if he or she unjustifiably and to a gross degree fails to observe the standard of care which a reasonable person would have observed in all of the circumstances. The jury should be told that ‘gross’ is an ordinary English word which should be given its ordinary meaning, but that it conveys the notion that the required negligence must be of a high order, involving a great falling short of the standard of care which a reasonable person would have exercised in all of the circumstances, and involving a high risk that death or serious injury would follow from the relevant conduct. It would usually also be helpful to explain that, since the required negligence must be of a high order, and must involve a high risk of death or serious injury, the kind of negligence which might be constituted by momentary inattention or a minor error of judgment, or which might found a simple civil claim for monetary compensation, generally would not be sufficient to support a finding of gross negligence. …
[12]Bouch, [139].
Redlich and Weinberg JJA, however, observed:[13]
We have had the considerable advantage of reading in draft the reasons for judgment prepared by Priest JA. We agree that it is a misdirection to include as an element of culpable driving causing death … that the jury must be satisfied that the driving in question ‘merited criminal punishment’. So far as jury directions in this State are concerned, the decision in R v De’Zilwa should continue to be applied, save for the excision of any reference to meriting, or deserving, criminal punishment, or any such equivalent.
[13]Ibid [1] (footnote omitted).
Whelan and Ferguson JJA agreed:[14]
We agree with Redlich and Weinberg JJA that juries should from now on be directed in accordance with the direction articulated by Charles JA in R v De’Zilwa,[15] save that there should be no reference to meriting criminal punishment. That is, the judge should direct the jury that they are required to find that the driving of the accused involved a great falling short of the standard of care which a reasonable person would have exercised in the circumstances and involved a high risk that death or serious injury would follow. A reference to and comparison with civil negligence is likely to be helpful to the jury.
[14]Ibid [73] (emphasis added).
[15](2002) 5 VR 408, 423 [46] (Charles JA with whom Ormiston JA and O’Bryan AJA agreed).
The De’Zilwa formulation — with the offending expression removed (and with other necessary contextual amendments) — would appear to be as follows:[16]
In my opinion where in future a person is charged with culpable driving under s 318(2)(b), the judge should direct the jury that the jury are required to find that the driving of the accused involved
sucha great falling short of the standard of care which a reasonable person would have exercised in the circumstances, andwhichinvolvedsucha high risk that death or serious injury[[17]] would follow, that the driving causing death merited criminal punishment. Consistently with Lucas,[[18]] a reference to and comparison with civil negligence would, I think, also be helpful to the jury.
[16]Ibid.
[17]It is interesting to note that Charles JA opted to use the expression serious injury (rather than really serious injury). His Honour arrived at the formulation after referring to Nydam v The Queen [1977] VR 430, 445, where Young CJ, McInerney and Crockett JJ said that in order to establish manslaughter by criminal negligence ‘it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment’. The expressions grievous bodily harm and really serious injury are interchangeable: R v Rhodes (1984) 14 A Crim R 124; R v TY (2006) 12 VR 557; R v Schaeffer (2005) 13 VR 337; R v Barrett (2007) 16 VR 240. In another context, however, it has been held that there is a distinction between the terms serious injury and really serious injury: Wilson v The Queen (1992) 174 CLR 313, 333 (Mason CJ, Toohey, Gaudron and McHugh JJ); R v Schaeffer (2005) 13 VR 337, 358–9 [95]–[97]. Charles JA did not explain his reasons for omitting the qualifier really, save that he observed (De’Zilwa, 423 [46]) that he had ‘consulted the President as to the form of this suggested direction, and he [had] indicated his agreement with it’.
[18]R v Lucas [1973] VR 693 (‘Lucas’).
In the Amended Written Case for the Applicant, counsel submitted that ‘the formulation in De’Zilwa minus the offending words loses its potency in setting the required high standard for gross negligence’. The remaining words ‘simply are a gloss on the actual words of the statute’. Moreover, it was submitted that the existing De’Zilwa formulation ‘is adopted from the common law formulation in relation to manslaughter and not by an analysis of the text of the section which is contrary to the modern approach to statutory interpretation as set out by the High Court’ in Getachew.[19]
[19]R v Getachew (2012) 248 CLR 22, 27–8 [11] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
Although I prefer my own formulation, the majority in Bouch favours the formulation described at [30] and [31] above. That formulation must therefore prevail, although there is much to be said, in my view, for the applicant’s contention that the De’Zilwa formulation, when stripped of the offending expression, is apt to dilute the great falling short of the standard of care required to establish gross negligence.[20]
[20]See also fn 17 above.
As I have said, subject to the question whether there has been a substantial miscarriage of justice, ground 5 must succeed. With respect to that question, senior counsel for the applicant in oral argument conceded that, standing alone, the relevant misdirection would not constitute a substantial miscarriage of justice. Indeed, senior counsel submitted that, in order to establish that there has been a substantial miscarriage, the applicant would need to make out one or more of the other grounds touching conviction.
Hence, it will be expedient to turn to the question whether there has been a substantial miscarriage of justice after analysing the other grounds of appeal respecting conviction.[21]
[21]See [80] et seq below.
The order of considering verdicts — conviction ground 1
It is convenient to turn next to the first ground with respect to conviction, which asserts that the judge erred in directing the jury that they must consider the charges of culpable driving and reach a verdict on them before considering the alternative charges of dangerous driving causing death.
As I have indicated, at the end of the prosecution case the applicant formally admitted that he had caused the deaths of the two deceased ‘by driving a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances of the case’.[22] Ultimately (and appropriately), the judge left the alternative of dangerous driving causing death to the jury on both charges of culpable driving, and directed on the elements of that offence.
[22]Shortly before the end of the prosecution case, counsel for the applicant asked that his client be re-arraigned before the jury so that he could enter pleas of guilty to the statutory alternative on each charge. The trial judge was, however, of the view — I do not pause to consider whether he was correct — that neither s 215 nor s 219 of the Criminal Procedure Act 2009 permitted such a course to be adopted. In the trial judge’s opinion, the appropriate course was for the applicant to ‘tender an admission in regard to an alternative charge’. As a result, the applicant’s counsel tendered the Admission of Fact, Exhibit 2, immediately upon the close of the prosecution case.
Under cover of ground 1, the applicant submitted that it is well settled by authority that juries may organise their deliberations and consider the charges on an indictment in any order they choose. Trial judges, it was submitted, must not direct a jury to consider offences in a particular order, so that it is wrong to suggest that the jury consider the principal charge before any alternatives.[23] It was contended that, fairly considered, the effect of the judge’s directions was that the jury were not to deliberate on the charges of dangerous driving until they had deliberated on the culpable driving charges and found them not to be proved.
[23]Counsel relied on Stanton v The Queen (2003) 198 ALR 41, 49 [35], 57–8 [70] (‘Stanton’); LLW v The Queen (2012) 35 VR 372, 376–7 [13]; Medici v The Queen (2013) 39 VR 350, 353 [11]; Smith v The Queen (2013) 39 VR 336, 340 [22] (‘Smith’); and Vo v The Queen (2013) 39 VR 543, 546 [15].
In written submissions, the respondent contended that the judge’s directions provided ‘proper assistance to the jury about how to adjudicate between alternative charges on the indictment and the statutory alternatives’. The judge’s language, it was submitted, did not ‘become didactic about the organisation by the jury of its deliberations’. And, citing from Smith,[24] it was contended that the passages the subject of complaint ‘neither contain any judicial command as to the order on which the jury should consider the alternative verdicts nor dictate any sequence of deliberation’.
[24]Smith, 344 [35].
Alternatively, the respondent submitted that, even if the judge’s directions did dictate the sequence of the jury’s consideration of the charges, the error could not have made any difference to the jury’s verdict, and, therefore, there has been no substantial miscarriage of justice. There is, so it was submitted, ‘a distinct air of artificiality’ about the complaint in ground 1 given that, at the close of the prosecution case, the applicant formally admitted facts which ‘in effect constituted pleas of guilty to the two statutory alternative charges of dangerous driving causing death’. Thus, ‘the only issue effectively left for the jury’s determination was whether or not the applicant’s driving was grossly negligent’. Consequently, so the respondent contended, ‘there was little for the jury to deliberate about, other than the applicant’s guilt or non-guilt of the culpable driving charges’.
So as to gauge the merit of the parties’ competing contentions, it is necessary to examine what the judge told the jury.
Immediately after the Admission of Fact was tendered, the judge gave the jury directions which included the following:[25]
… [Defence counsel] has told you that there is an admission, which will be a formal admission, that [the applicant] accepts in the circumstances that, insofar as the deaths of both parties referred to in the indictment, he admits that he is guilty of dangerous driving causing their death.
Now, that is a statutory alternative to culpable driving, which are the two charges that he has pleaded not guilty to and, insofar as those charges are concerned, [the prosecution] maintain the case that they wish to prove to you that he is guilty of those matters. The fact of the admission now made will only come into play in your considerations if you get to the stage on either of those counts of finding him not guilty of culpable driving. All right? So the trial proceeds on that basis.
The issue as to his admission as to the statutory alternate [sic] charge, which is a lesser charge, will come into play after you have made your determination in regard to the first two matters.
…
Can I just indicate to you, of course, and one thing is very clear by the admission that in no way is an admission of the culpable driving. That’s a consideration for you. The two charges that you have to consider are not impacted by that at all and they only come into play if you find him not guilty of culpable driving on either counts. Then you will take into account the fact that he has made an admission to those matters as to whether you find him guilty on the alternate [sic] matters. But they don’t come into play in regard to the two counts of culpable [driving]. All right?
But ultimately, Mr Foreman, and members of the jury, you will have to consider the statutory alternative and you will be asked, Mr Foreman, and members of the jury: if you find on Charge 1 [the applicant] to be not guilty of Charge 1 the statutory alternative will be put to you, do you find him guilty of the other one? Then in regard to that you will take into account, of course, his admission of guilty. …
[25]Emphasis added to this and the following passages.
A little later, before the prosecutor’s final address, the judge added the following:
Can I just emphasise that last piece of procedure that took place, and because I don’t address you on law until after the two addresses of counsel, but as a matter of law I want to make it clear to you that the admission document tendered, that is the admission to being guilty of the lesser alternate [sic] offence has nothing to do with the evidence in regard to the offences to which he's pleaded not guilty. All right, that admission is to a lesser alternate [sic] offence and you don't take that into account.
The only time you’ll ever consider that admission is if you in either of one or two find [the applicant] not guilty, then you go to the alternate [sic], but I’ll explain that in due course and I’ll give you the elements of both charges, so you’ll understand the difference in them. All right, I hope so anyway. …
In the course of the charge, he gave the following relevant directions:[26]
We now come to the issue of the alternate [sic] counts. In this case the [applicant] has been charged with two counts of culpable driving which are on the indictment before you. The law says that when a person is charged with that particular offence, you are, if you found them not guilty of that offence, then entitled to go on to consider what is known as a statutory alternative and you are entitled to find a person guilty of the offence of dangerous driving causing death.
I stress that for this to happen in either of these instances, Mr Foreman and members of the jury, you first need to consider the charge of culpable driving, you first have to be satisfied that the appropriate finding is one of not guilty in regard to either Counts 1 or 2. … you can only consider this alternative if you have found in regard to 1 or 2 [the applicant] not guilty. If you find in regard to 1 and 2 [the applicant] to be guilty, then you need not concern yourself with worrying about the alternative.
Accordingly, in regard to each of Charges 1 and 2, when you have reached your verdict, you will be asked by my associate, ‘What is your verdict, Mr Foreman, on behalf of the jury?’ If your verdict on either 1 or 2 is one of guilty, you will not be asked a further question in regard to that matter. If however, your answer is, ‘Not guilty’ my associate will then go on to ask you for a verdict as to the alternate [sic] charge.
I remind you that an accused is entitled to a separate trial upon each count, and you must not reach your verdict by compromising between them. So in this instance intellectually you look at the charge of culpable driving, you look at the evidence relevant to it, you marry the law to it and you ask yourselves, ‘Are we satisfied unanimously that the Crown has proved this case beyond reasonable doubt?’
If you are, you record a verdict of guilty, end of proceedings. If you record, in either charge 1 or 2 a verdict of not guilty, we go to the alternate [sic] count. Now, in regard to the alternate [sic] count, I told you that this is a situation created by Parliament where there is what they call a statutory alternative set out in the statute in the Crimes Act.
[26]Emphasis added.
In my view, these directions would have been understood by the jury in the following way:
· if the jury found the applicant not guilty of culpable driving, they were ‘then entitled’ to proceed to consider the statutory alternative of dangerous driving causing death;
· the jury needed first to consider the charges of culpable driving; and
· the jury could ‘only consider’ the alternative of dangerous driving causing death if they had found the applicant not guilty of the culpable driving charges.
It is important to notice that the direction that the jury could ‘only consider’ the alternative of dangerous driving causing death if they found the applicant not guilty of the culpable driving charges is reminiscent of the directions impugned in Bouch, the crucial parts of which were:[27]
The law says … that whenever the prosecution bring charges of culpable driving by criminal negligence and negligently causing serious injury, the two charges here, the jury must consider alternative charges of dangerous driving causing death as an alternative to dangerous driving, and dangerous driving causing serious injury, as an alternative to negligently causing serious injury. They have to both be left to the jury as alternative charges to the car [sic].
In this case the accused man pleaded guilty to both those alternative charges when he was arraigned in the first place. You might recall he said not guilty to culpable driving but guilty to dangerous driving causing death, and similarly, not guilty to negligently causing serious but guilty of dangerous driving causing serious injury.
You only consider the alternative charges if you are not satisfied beyond reasonable doubt that the accused is guilty of culpable driving and negligently causing serious injury. That is why I say that is the issue for you in this trial. You ask yourself whether the evidence proves those charges beyond reasonable doubt. If it does you will find him guilty and you do not have to consider the alternative charges, but if you find him not guilty of culpable driving and negligently causing serious injury, because you are not satisfied his driving reaches the required standard, you will then have to consider the alternative verdicts of dangerous driving causing death and dangerous driving causing serious injury.
[27]See Bouch, [29], [150] (emphasis added).
On a fair reading, it seems to me that the judge’s directions in the present case — that the jury first needed to consider the charges of culpable driving, and could only consider the statutory alternatives if they had found the applicant not guilty of those charges — cannot materially be distinguished from those given in Bouch.
In Bouch I took the view that, properly understood, the impugned directions did not fetter the manner in which the jury were to consider their verdicts by impermissibly dictating the sequence of the jury’s deliberations, and that they simply made clear to the jury that they need not consider the alternative dangerous driving charges unless they were not satisfied of guilt on the primary charges alleging gross negligence. Moreover, I concluded that in a case where the sole issue was whether the appellant’s driving was attended by gross negligence, it was fanciful to suggest that the judge’s directions infringed the principle in Stanton.[28] Whelan and Ferguson JJA agreed in the result, observing that ‘there was no practical risk that what the judge said would act as a fetter or restraint upon the sequence of the jury’s deliberations because there was only one matter upon which they had to deliberate’, so that the concern at which the Stanton principle is directed simply did not exist as a practical issue in the case.[29] On the other hand, Redlich and Weinberg JJA found that the principle in Stanton had been infringed, but that, since conviction for culpable driving was inevitable, there had been no substantial miscarriage of justice.[30]
[28]Bouch, [151].
[29]Ibid [77].
[30]Ibid [66]–[71].
In the present case, as in Bouch, the applicant formally admitted that ‘by driving a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances of the case, [he] respectively caused the death’ of Adam Beardsmore and Daniel Hay (the only difference in the circumstances of the admissions in the two cases being that in Bouch pleas of guilty to dangerous driving causing death were entered before the jury). Thus, as was the situation in Bouch, the sole issue in the present case was whether the applicant’s driving was grossly negligent. That being so, I would conclude — as I did in Bouch — that it is fanciful to suggest that the judge’s directions infringed the principle in Stanton. Further, I would embrace the notion that there is no real risk that the judge’s directions operated as a fetter or restraint upon the sequence of the jury’s deliberations because there was only one matter upon which they had to deliberate, so that the concern at which the Stanton principle is directed simply did not exist as a practical issue in the case.
For these reasons, ground 1 cannot be upheld.
Failure to direct adequately on differences between culpable driving and dangerous driving causing death — conviction ground 2
Counsel for the applicant submitted that it is well established that a trial judge must clearly direct the jury about the differences between culpable driving and dangerous driving causing death, but that in this case the judge failed to do so. Indeed, so it was submitted in the applicant’s Amended Written Case, the trial judge ‘did little more than describe the elements in his oral preparation and then hand the jury a written document setting out those same elements leaving it to them to decide what the difference was between the [two] charges’. It was submitted that the judge should have directed the jury on the elements common to both — driving a motor vehicle and driving causing death — and then gone on ‘to draw the distinction’ between the two offences. Both culpable driving by gross negligence and dangerous driving causing death, it was submitted, are offences based on inadvertence. In culpable driving that inadvertence is the failure to a gross degree to observe the standard of care that a reasonable person would observe in all the circumstances of this case. It was argued that, by contrast, in dangerous driving ‘the inadvertence is creating a situation which in reality caused a danger to members of the public who may be on the highway or in the vicinity’. The factors that can be relied upon are limited to the speed and manner of the driving in all the circumstances. As part of the analysis, so it was submitted, the judge should have told the jury that ‘the driving of Mr Beardsmore was part of the circumstances which they had to take into account in determining the culpability’ of the applicant. It was submitted that the judge ‘could also have told the jury, though it was a matter entirely for them how they go about their deliberations, they may consider it helpful to look at the [two] types of charges together in determining which one most appropriately captured the culpability of [the applicant] in the circumstances’.
In the course of the charge, the judge provided the jury with two documents — headed respectively ‘Charge 1 & 2’ and ‘Statutory Alternative to Charge 1 & 2’ — setting out the elements of the charges in the following terms:
CHARGE 1 & 2
Culpable Driving Causing Death
s.318 of the Crimes Act 1958
Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence
Elements
The Prosecution must prove beyond reasonable doubt that:
(1) Mr George was driving a motor vehicle, and
(2) That Mr George’s driving was culpable in that he drove in a manner which was grossly negligent, and
(3) That Mr George’s culpable driving caused the death of:
• Charge 1 — Adam Beardsmore
• Charge 2 — Daniel Hay
DEFINITIONS
(a) Culpable Driving
One drives a motor vehicle culpably if you drive the motor vehicle:
negligently, that is to say, if one fails unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances.
(b) Gross Negligence
Gross negligence means driving a motor vehicle in a way that:
(i) fell so far short of the standard of care which a reasonable person would have exercised in the circumstances, and
(ii) created such a high risk of death or serious injury
that such driving merits criminal punishment.
(c) Gross
The word in these circumstances can be defined as glaring, flagrant or outrageous.
…
STATUTORY ALTERNATIVE TO CHARGE 1 & 2
Dangerous Driving Causing Death
s.319 of the Crimes Act 1958
A person who, by driving a motor vehicle in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence.
Elements
The Prosecution must prove beyond reasonable doubt that:
(1) Mr George was driving a motor vehicle, and
(2) At the time of such driving Mr George drove in a manner that was dangerous to the public, and
(3) That Mr George’s dangerous driving caused the death of:
• Alternative to Charge 1 — Adam Beardsmore
• Alternative to Charge 2 — Daniel Hay
DEFINITIONS
(a) Dangerous driving involves conduct which is less blameworthy than culpable driving
(b) Dangerous driving means driving in a manner that:
(i) involves a serious breach of the proper management or control of his vehicle which
(ii) created a real risk that members of the public in the vicinity would be killed or seriously injured
The trial judge’s oral directions on the elements of culpable driving and dangerous driving causing death largely mirrored those set out in the two documents provided to the jury. In the course of setting out the elements, the judge said:[31]
Before I instruct you on the elements of that alternate [sic] charge, it is important to again stress the charge, that is the alternate [sic] charge, is one of dangerous driving causing death. This is also quite clearly a serious charge, but is a less serious charge than the offence of culpable driving, right. Also the elements of that charge are different, as you will see when I now hand you up the next summary.[[32]]
As I have explained in culpable driving you are required to be satisfied of the element of the proof of gross negligence. Dangerous driving as a less serious charge in the criminal hierarchy, requires proof of a serious breach of the proper control and management of a vehicle which creates a real risk that the public in the vicinity will be placed at risk of being injured or seriously injured or killed.
[31]Emphasis added.
[32]That is, the document headed STATUTORY ALTERNATIVE TO CHARGE 1 & 2.
In my view, the directions set out above were sufficient to bring home to the jury the differences between culpable driving and dangerous driving causing death.[33] The judge made clear that dangerous driving causing death was a serious offence — albeit less serious than culpable driving — which required proof of a serious breach of the proper control and management of a motor vehicle which created a real risk that the public in the vicinity would be placed at risk of being injured or seriously injured or killed. No more was required to be said. In particular, the judge was not required to tell the jury that the driving of Mr Beardsmore was part of the circumstances which they had to take into account in determining the culpability of the applicant, or that it might be helpful to examine the two different offences together so as to determine which most appropriately captured the culpability of the applicant in the circumstances.
[33]See King, 596 [18], 609 [48] (French CJ, Crennan and Kiefel JJ).
My conclusion that the directions given by the judge were sufficient to distinguish culpable driving from dangerous driving causing death is fortified by the fact that experienced defence counsel took no exception to them.
I would not uphold ground 2.
The relevance of the other driver’s conduct in assessing culpability — conviction ground 3
Ground 3 asserts that the judge erred in failing to direct the jury to consider the driving of Mr Beardsmore together with that of the applicant, so as to determine the culpability of the applicant for the events that occurred and determine whether ‘the appropriate charges’ were culpable driving or dangerous driving causing death.
In written submissions in support of this ground it was contended that the ‘sole focus’ was on the applicant’s driving, the effect of that focus being that ‘the assessment of the applicant’s culpability [was] confined to his speed and the closeness to the other vehicle and [was] displaced from the true context’. Both cars, so it was submitted, were speeding; both cars apparently failed to take a left hand bend; and both drivers lost control of their cars. The evidence revealed that Mr Beardsmore had a mobile telephone in his hand, and was aware that he had a passenger in his car who was exposed to danger by his conduct, ‘yet none of that figures in the charge’. Instead, so it was contended, ‘all the blame is put on the applicant’, the failure to direct the jury on that context meaning ‘that the opportunity to consider the applicant’s culpability as reduced was lost’.
In my view, however, the jury would have understood that in assessing whether the applicant’s driving was attended by gross negligence, they were required to take all of the circumstances into account. The judge made so much plain in his charge:[34]
[34]Emphasis added.
The determination of whether there was gross negligence in this case requires you, members of the jury, to compare the [applicant’s] conduct in this matter with the standard of care that a reasonable person would have exercised in the circumstances. Precisely what that standard would have been is a matter for you to decide, taking into account all the circumstances. …
…
… It is necessary for you to set the objective standard that the community would expect of a person driving, taking into account the circumstances of this case, and compare that with the actual driving.
…
… You must also find beyond reasonable doubt that when compared against the standard of care that a reasonable person would have exercised in the circumstances, his conduct was so far short of that standard that it is deserving of criminal punishment.
In making that determination, you can take into account the circumstances in regard to [the applicant] himself on that day …
…
For a person to be guilty of culpable driving, more is required. You must be satisfied beyond reasonable doubt that the driving in this instance was grossly negligent, in the terms as defined there. That is, that the driving, in totality, taking account of all the circumstances, looking at the definition that I have given you, falls so far short of the standard of care which a reasonable person, and you determine that standard on behalf of the community, would have exercised in the circumstances and created such a high risk of death or serious injury that such driving merits criminal punishment.
…
… The case is not presented by the prosecution that it is only the failure to avoid the collision [that can constitute gross negligence] in this instance, it is a matter taking into account all the circumstances.
As I have said, counsel for the applicant complained that the sole focus of the relevant directions was on the applicant’s driving; and that, when directing the jury to take ‘all of the circumstances’ into account in determining the issue of gross negligence, the judge failed to make any reference to Mr Beardsmore’s driving. In my view, however, in the particular circumstances of this case, for the judge to have focussed attention on Mr Beardsmore’s driving would have been to focus on an irrelevant matter.
It was undisputed that at crucial times the applicant’s black utility was travelling behind the blue Ford sedan being driven by Mr Beardsmore. Indeed, in his interview with police, the applicant accepted that this was so (although he claimed to have set the cruise control on his vehicle at just under the speed limit of 100 kilometres per hour when he observed the blue Ford sedan travelling at about 105 kilometres per hour a few cars in front of him, and also claimed that the Ford lost control causing him to swerve to avoid it and to lose control of his own vehicle). And other evidence made it clear that the applicant’s vehicle was behind Mr Beardsmore’s at relevant times.
For example, Valerie Jerram was driving a white Toyota vehicle westerly in the right lane when she became aware of a car — plainly Mr Beardsmore’s vehicle — ‘tailgating’ her vehicle ‘about a metre behind’. In evidence she said that ‘it came up so fast that [she] really didn’t see it coming’. She sped up to get out of its way. Ms Jerram then gave the following evidence:[35]
[PROSECUTOR]: Okay. And what happened then?---That’s when all hell broke loose and as I moved out of the way so the car that was tailgating me virtually put his foot absolutely flat to the floor and virtually flew past and flew down the road in — but within seconds the black ute came behind and it was far more powerful and being driven with a heck of a lot more aggressiveness and it just roared past as well.
So what was it about the way the black ute was being driven that led you to form - - -?---Well, it was far more powerful. It was — it was — it was, shall we say, I saw no aggression in the first car taking off other than that it was in a heck of a hurry to get down the road, but the car behind it was certainly chasing it.
Now - - ?---It [was not] two guys were doing a burn alongside each other. The black car was certainly absolutely pursuing the front car with - - -
…
HIS HONOUR: I’m sorry, I didn’t get you there, Ms Jerram. Did you say it wasn’t as though two cars were driving beside it [sic] each other, the black car was pursuing the car. Is that right?---Yes.
Right?---Yes. But that’s how — that’s how the situation looked very clearly, that the one in the front is trying very hard to get away from the one at the back but the one at the back had a — in my opinion — had a much more powerful vehicle and the road [scil., roar] of that car going by was with me for — for weeks on end afterwards.
[35]Emphasis added to these and following passages.
And Judy McKay, Valerie Jerram’s daughter, who was in the front passenger seat of her mother’s car, gave evidence of her observations after her mother had moved their vehicle into the left lane:
[PROSECUTOR]: You noticed two vehicles?---Yes.
In the right-hand lane?---Yes.
…
Describe the first one for us, please?---The first vehicle was a blue Ford sedan.
And the second?---A black Holden ute.
How were they positioned on the road compared to each other?---The black was tailgating the blue car.
Please tell us if you can’t answer the next question, but can you tell us how far apart they were?---I can’t give you an accurate estimate, just perhaps a metre or two.
You’ve described them coming past you in the right-hand lane. You were in the left-hand lane. What did they do then?---Just continued to accelerate at a very fast speed, just, like, progressively getting faster and faster.
Did the speed that your mother’s car was travelling change?---No.
Compared to the speed that the vehicle you were in was travelling?---Yeah.
You’ve told us that they kept getting faster and faster?---Yes.
Can you describe that in a bit more detail? How did they appear as they drove away?---It was like cars taking off from the lights, except they were starting at 100 kilometres an hour.
Did you watch them as they drove?---Yeah, it was like a drag race, but the black car was — appeared to be pursuing the car in front rather than a side-by-side situation which you would have in a drag race.
It needs to be borne steadily in mind that the ‘circumstances’ contemplated by s 318(2)(b) of the Crimes Act 1958 are those that bear upon the standard of care, since ‘a person drives a motor vehicle culpably if he drives the motor vehicle … negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case’.
On the state of the evidence, in my view Mr Beardsmore’s driving could have had no relevance to the issues whether the applicant’s driving was grossly negligent or was a substantial and operative cause of death. It is clear that the applicant’s vehicle was at relevant times behind Mr Beardsmore’s, appearing to witnesses to be in its pursuit. Had situations been reversed, so that it was the applicant who was being pursued — which was the situation in Lucas — then Mr Beardsmore’s driving might have been relevant to determining whether the applicant’s driving was grossly negligent ‘in all the circumstances’, including the ‘predicament’ created by such pursuit.[36] As Newton J and Norris AJ observed in Lucas:[37]
… The words in s 318(2)(b) ‘in all the circumstances of the case’ are of great importance. They make it clear that in fixing the standard of care which a reasonable man would have observed the particular situation or predicament of the accused person at the time of the alleged offence is very relevant, so that it is necessary to weigh any advantages which the accused’s manner of driving was likely to bring to himself or others against the risks to life or limb which it created. Indeed, this is a well-recognized concept in the general law of negligence, albeit but sparsely illustrated by reported decisions. ...
... We doubt whether the word ‘unjustifiably’ in s 318(2)(b), which must mean ‘without due cause’, adds anything to the meaning which s 318(2)(b) would otherwise have, because in deciding whether a driver had failed to a gross degree to observe the standard of care which a reasonable man would have observed in all circumstances of the case, the question of whether or to what extent he had due cause for his acts or omissions in question would in any event be relevant. The word ‘unjustifiably’ in s 318(2)(a) appears to us to have much greater importance.
[36]In Lucas, evidence from several witnesses indicated that, shortly before colliding with other cars and a fence at high speed (causing the death of a passenger), the applicant’s Ford Fairlane was being closely pursued by a Ford Cortina containing a number of young men, who had a short time previously demonstrated a very aggressive and threatening attitude towards the applicant, the deceased and the applicant’s other passengers.
[37]Lucas, 700–1 (emphasis added).
Lucas makes clear that in some circumstances the actions of another driver might be relevant in fixing the standard of care which a reasonable man would have observed in the particular situation or predicament of the accused person at the time of the driving founding the alleged offence.[38] But that is not this case. On the preponderance of the evidence, the two inferences available were either that Mr Beardsmore and the applicant were racing, or the applicant was pursuing Mr Beardsmore, immediately prior to the collision.[39] In either case, Mr Beardsmore’s driving could have had no relevance to the issue whether the applicant unjustifiably and to a gross degree failed to observe the standard of care which a reasonable man would have observed in all the circumstances.
[38]R v Mathers (1988) 38 A Crim R 423 (Young CJ, King and Tadgell JJ) was another case involving a pursuit, although the pursued driver in that case was tried for culpable driving alongside his pursuer and was acquitted by the jury. Among other things, the pursuing driver claimed on appeal — unsuccessfully — that he should have been tried separately from the driver who was pursued.
[39]A third alternative, put forward by senior counsel for the applicant, was to the effect that it may have been merely coincidental that the two vehicles were travelling along the freeway at very high speed in very close proximity one to the other. With respect, I regard that suggested alternative as being preposterous.
Moreover, Mr Beardsmore’s driving could not in any material way have borne on the issue of causation. In his charge, the judge directed the jury that the applicant’s driving did not have to be ‘the only cause’ of death, and that, looking ‘at all aspects’, there might be a ‘number of causes’. The judge said that the jury had to be satisfied that the driving was ‘the direct and immediate cause of the death in each instance of Mr Beardsmore or Mr Hay’. As to this, certain observations of Kaye JA (with whom Redlich JA and Ginnane AJA agreed) in Dunkley-Price are apposite:[40]
The question, whether the driving of the applicant caused the death … was a question of fact for the jury, and not a question of law for the judge. The question is to be approached by the jury as an exercise of common sense, and not by resort to philosophical or scientific theories. It is recognised that there may be more than one cause of death. It is not necessary that the driving or conduct of the applicant be the sole or even the principal cause of the collision. Ordinarily, the test to be applied by the jury is whether it is satisfied beyond reasonable doubt that the driving or conduct of the applicant was a substantial and operative cause of the accident.
[40]Dunkley-Price v The Queen (2015) 73 MVR 450, 458–9 [38] (emphasis added; footnotes omitted).
Ground 3 cannot be sustained.
Use of lies — conviction ground 4
In the course of the hearing in this Court, when it was pointed out to senior counsel for the applicant that the submissions that he wished to advance in support of the ground bore no relevance to the ground as formulated, senior counsel sought leave to amend the ground as follows:
The learned Trial Judge erred in law in permitting the statements of [the applicant] in his record of interview concerning the cruise control to be used as a lie
giving rise to an implied admission of guiltthat can be used to assess his credit.
I would refuse leave to amend ground 4, since it would be pointless to do so. The ground — whether in its original manifestation or as sought to be reformulated — is wholly bereft of merit.
It will be recalled that the applicant told police that at the time of the collision he was taking his time to get to his destination and was not in a hurry; that he had set the cruise control of his vehicle and was travelling at just under the speed limit of 100 kilometres per hour when he observed the blue Ford sedan travelling at about 105 kilometres per hour a few cars in front of him; and that the Ford lost control causing him to swerve to avoid it and to lose control of his own vehicle.
Examination of the prosecutor’s final address to the jury demonstrates that the prosecution did not rely on the applicant’s suggestion that he had set the cruise control of his vehicle at under 100 kilometres per hour as an implied admission of guilt, but rather as a lie impinging upon credit. The prosecutor said:
Turning then to the background to what [the applicant] was doing before he ended up on the Mornington Peninsula Freeway that afternoon, and what was he intending to do. The only evidence we have about that is his account to the police when he was interviewed and he told them that he was driving down the Mornington Peninsula Freeway because he was going to Rosebud to take a friend who suffered from diabetes, a Neutroblast type of food processor, and he told the investigator who interviewed him, who was Detective Miles, that he wasn’t in a hurry. ...
But you will also recall he told investigators that he’d set his cruise control to 99 or 100 and that simply just can’t be true. It just can’t be the case. You’ve heard during the trial many witnesses give evidence that was completely inconsistent with that. He was driving at a much, much greater speed.
He also gave you quite a different version about how he was interacting with the blue Ford sedan driven by Mr Beardsmore and I will consider that again fairly briefly later in this address.
So what should you make of his interview? In my submission, his claim to have set his cruise control, as I have said, just cannot be correct, and in my submission, the account that he gave investigators contained lies.
You simply can’t accept a word he said in that interview in my submission. Now, it’s a matter for you, but in my submission, you can’t accept that account. It’s not truthful, it’s not reliable and you should simply put it to one side is what I would suggest.
Instead, you should rely on the evidence of the other witnesses who you’ve heard from …
In his charge, the judge gave the following directions on the applicant’s alleged lies in his record of interview:[41]
I want to come now to how you use the allegation that [the applicant] was lying in his record of interview. Insofar as the record of interview is concerned and I will give you a summary of that in due course, in opening and in his final address, the learned prosecutor said you should conclude that the evidence given in the record of interview to the police, which was brought before you in this case by the police. That evidence in particular was that [the applicant] said there was limited interaction between him and the other car, but most importantly that he put his speedometer [sic, cruise control] at 99 kph, should be rejected.
The learned prosecutor said to you looking at all the evidence, the evidence of all the individuals surrounding these cars, such statements cannot be true. If you in fact found that it was untrue and therefore you found that the accused was lying and by that, I mean that the accused told deliberate untruths, that he has told a lie in regard to those aspects, how do you use that? The law says that if you found those were lies, you can take those into account in assessing a person’s credibility. So you heard the learned prosecutor say look, just disregard what he said in that record of interview because of those statements.
If you find that a person has lied about something, that is in this case, when [the applicant] was speaking to the police, you can use that fact to help you decide whether or not you believe other answers that have been made in that statement. That is not to say that just because you find a person has lied about one matter, you must also find he has been lying about others, but you can use, if you found a lie, that to take into account in regard to considering the totality of what he has had to say.
It is for you to decide what significance you give to the lies, if you so found them to be lies, but I give you this warning, just because you decide a person has told a lie about something, it does not mean they are guilty. You simply make that finding, you take it into account on the issue of the credibility of the story that he told the police and then you go on to consider the elements as I have told you to determine whether the prosecution has proved the case beyond reasonable doubt.
In regard to this issue of course you will remember the argument of [defence counsel], when you are considering the issue, was [the applicant] lying, he is being asked these questions, according to [defence counsel], as [he] came out from the record of interview and… not only after a very serious accident of which you know, which happened at speed and with impact, but after he has been treated in hospital with a particular drug that apparently did not react too well with him. So they are factors [defence counsel] has asked you to take into account when considering this matter, put in [the] final address by the learned prosecutor that you should find that he has lied, but the important thing is, even if you do find that, that is not of itself a proof of guilt in this matter. You must look at the elements and be satisfied of those beyond reasonable doubt.
[41]Emphasis added.
The applicant’s counsel submitted in this Court that the above passage contains a ‘material misdirection’, in that there was no evidence to establish that the applicant’s account with respect to the cruise control was a lie, the jury being asked to speculate about the matter. I do not accept that submission.
It is plain from the extracted passage that the judge did not leave any alleged lie to the jury as an implied admission of guilt. Thus, the ground of appeal as originally pleaded is without any substance.
Moreover, with respect to the ground as reformulated, it will be seen that the judge made it clear that the particular lie (or lies) relied upon by the prosecution was that ‘there was limited interaction’ between the applicant’s and the other car, ‘but most importantly’ that the applicant had set his cruise control at 99 kilometres per hour; and that the jury might conclude such to be a lie (or lies) based on the evidence of other road users who had made relevant observations about the speed of the two vehicles and their interaction. Thus, having identified the lie (or lies) relied upon by the prosecution, the judge made it clear that the basis of the suggestion that the applicant had lied was the evidence of other drivers. The jury was not asked to speculate. Indeed, if the jury accepted the evidence of other road users — some of whom estimated the speeds of the two vehicles at 140 to 150 kilometres per hour, and a number of whom said that it appeared the black vehicle was ‘pursuing’ the blue vehicle — the inference was compelling that the applicant had been deliberately untruthful in the manner alleged.
Once the jury determined that the applicant had lied, they were entitled to use the lie (or lies) when assessing the credit of other things that he told police in his interview.[42]
[42]See R v Renzella [1997] 2 VR 88, 91.
Ground 4 is, as I have indicated, wholly bereft of merit.
A substantial miscarriage of justice?
As I earlier indicated, given that the judge employed the forbidden expression ‘merits criminal punishment’ when directing on the elements of culpable driving, it must be accepted that the jury were misdirected and therefore that justice has miscarried. Hence, ground 5 must succeed, subject to determining whether there has been a substantial miscarriage of justice.[43]
[43]See [35]–[36] above.
Having examined the whole of the evidence, I am satisfied that there has been no substantial miscarriage of justice, since I regard the applicant’s conviction for culpable driving to have been inevitable. The evidence reveals that the applicant’s and Mr Beardsmore’s vehicles travelled in close proximity to one another at very high speed, and that the applicant’s vehicle came into contact with Mr Beardsmore’s at a speed in excess of 150 kilometres per hour.
I summarised part of the evidence of Valerie Jerram and Judy McKay above, and it is unnecessary to repeat it.[44] It is convenient, however, to refer to critical parts of the evidence of some of the other eye-witnesses to the applicant’s driving on the Mornington Peninsula Freeway at or around the time of the collision on 17 November 2014.
[44]At [63]–[64] above.
Benjamin Spedding gave evidence that he was driving westerly in the left lane of the freeway at about 100 kilometres per hour when a blue Ford XR6 and a black Holden Crewman went ‘flying’ past his vehicle in the right lane at ‘excessive speed’, ‘maybe around 140 kilometres an hour’. There was ‘approximately probably ten metres, thereabouts, between the blue car and the black car’. The two cars had to slow down for a Toyota in the right lane — presumably Ms Jerram’s vehicle — and, after the Toyota merged left, ‘the blue Ford and the black Holden both then accelerated like you wouldn’t believe’. As the cars accelerated away, Mr Spedding estimated their speed to be ‘at least 160’ kilometres per hour. He lost sight of the two cars as they went around a bend. When he rounded the bend, Mr Spedding saw the blue car in the trees with a fire underneath it, and the black Holden sitting in the median strip.
Greer Arnott was traveling westerly on the freeway in the left lane near the Dromana ‘off’ ramp when a blue car and a black car overtook her vehicle ‘very, very quickly in the right-hand lane’. The two cars were travelling at the same speed at well over 100 kilometres per hour, and were separated by a distance of ‘maybe’ two feet. At one point, Ms Arnott saw that the vehicles ‘were going very quick, and the black car, which was behind the blue one, was moving side to side in the right hand lane quite quickly … sort of swerving within the right-hand lane’. By that time, the black car was ‘only sort of 20 [to] 30 metres in front’. On ‘one of its swerves over to the right-hand side’, the black car’s ‘back, rear, right-hand tyre went into the gravel on the road and then, after that, the black car … pretty much lost control’. Ms Arnott saw that the blue car ended up in the trees, and the black car finished in the right hand lane of the freeway facing oncoming traffic.
Katie Tweedly gave evidence that she was driving from Mornington to Rosebud in the left lane of the freeway when ‘a flash of blue and black’ went past her, ‘probably going at least 150 kilometres an hour’. The blue flash and the black flash ‘were awfully close’ to each other. Both cars disappeared around a bend, and, by the time she came around the bend, Ms Tweedly saw that the ‘black ute’ had ‘crashed’ and she saw the other car ‘in the bushes’.[45]
[45]Counsel for the applicant sought to place some reliance on the fact that under cross-examination Ms Tweedly said that she saw the black utility with an indicator on. Ms Tweedly is the only witness who claimed to see an indicator operating; and, in any event, despite counsel’s submissions, I fail to comprehend the relevance of the evidence to any issue in the case. In her evidence, Ms Tweedly said that she had passed the turnoff for Arthurs Seat Road. Her evidence was then as follows:
Were you past that when these cars came past you, the two of them?---Yes, I had just passed it.
Then what you say is there was a blue and a black car. The black ute put an indicator on; correct?---Yes.
And the indicator was to go left?---Yes, that’s the indicator that I saw, yes.
Yes, and can I suggest to you that there’s no doubt in your mind, or there wasn’t when you spoke to the police, that it was the black ute that put the left-hand indicator on?---Yes.
Yes. However, both cars continued to travel in the right-hand lane---?---Yes.
---and you lose sight of them around the bend?---Yes.
Angela Roane said that she was travelling westerly on the freeway at about 100 kilometres per hour in the left lane when she noticed a ‘blue, four door sedan’ and a ‘black ute’ that were ‘snaking around the bend’ on the road behind her, at a speed she estimated to be 140 kilometres per hour. Ms Roane said there ‘was no discernible gap between the two vehicles’. As she was trying to find a point where she could ‘just drive straight off’, Ms Roane observed that ‘it appeared as if the ute was trying to move into the left-hand lane to overtake the blue sedan and, at that time, it appeared that the blue sedan was also moving to the left’. Ms Roane then ‘panicked’ because she was ‘directly in their path’. She accelerated and, when she looked back, ‘there was just a wall of smoke’. The blue car had ‘spun off to the right-hand side and then the ute was just spinning and spinning’ behind her, ‘with parts of the car flying through the air’.
Angie McKay, who was a passenger in Ms Jerram’s vehicle, saw the blue vehicle and black vehicle ‘flying past’ Ms Jerram’s car ‘ridiculously close’ to each other, at ‘like, 40 kilometres faster than the speed limit’.
Finally, Margaret Veal, who was a passenger in her husband’s vehicle, noticed that ‘two cars came past [their car] very fast’ on the right. They seemed to be ‘really flying’ and ‘were very close’. Ms Veal saw the second car veer out towards the left and clip the car in front, so that the two cars then veered off to the right.
In my opinion, in light of the evidence that I have set out, a reasonable jury, properly directed, could not have failed to be satisfied that, in the circumstances as described, the applicant’s driving — which caused the deaths of the two deceased — was grossly negligent.
Thus, although leave to appeal against conviction should be granted on ground 5, the appeal must be dismissed.
Alleged fresh evidence — sentence ground 4
With respect to the application for leave to appeal against sentence, it is convenient to turn first to ground 4, which asserts that the applicant should be re-sentenced in light of fresh evidence relating, first, to the effect of previous injuries that he sustained in 1984 (and referred to in the sentencing remarks), and, secondly, to further medical issues which have resurfaced because of the conditions of the applicant’s custody.
The applicant relies on the contents of the affidavit of his solicitor, sworn on 15 February 2017, and his own affidavit, sworn 1 March 2017, as fresh evidence to demonstrate that he has suffered further orthopaedic injury whilst in custody and that the lack of an appropriate diet has caused a pre-existing rectal condition to again manifest itself. It is submitted that these conditions now make his incarceration more onerous than was expected at the time of sentence.
It seems that in March 2008 the applicant had a haemorrhoidectomy from which he suffered serious complications, resulting in spending time in intensive care. Since he had managed his subsequent condition with diet, he did not tell his lawyers about the operation for the purposes of the plea.
Following incarceration, the applicant has not been able to maintain his pre-custody diet, so that he has had post-stool rectal bleeding, for which a doctor prescribed Anusol cream. The applicant was also given a bottom bunk bed because of difficulties that he has with his right leg following a car accident some years ago.[46]
[46]See [116] below.
In September 2016, despite the recommendation that he be given a lower bunk, following being moved to Fulham Correctional Prison, the applicant was given an upper bunk. The upshot is that, on an occasion when he was alighting from the upper bunk, the applicant fell, injuring himself. He was later told that he had four bulging discs in his back and had torn the rotator cuff of his right shoulder, exacerbating a pre-existing injury to his shoulder suffered in November 2014.
The applicant swore that, since the fall, over time his pain has become worse. He cannot take prescribed Panadol because of stomach bloating. Further, he cannot move his neck without pain, and has constant headaches which affect his sleep. The applicant states that he cannot properly use his right arm and has pins and needles in both arms. Although his mobility was always restricted because of the condition of his right leg, the further injuries have made the situation worse. He bleeds from the rectum daily, and, although the Anusol used to provide temporary relief, it did not stop the bleeding. He has not been given Anusol since moving to Fulham.
In opposing the ground based on alleged fresh evidence, the respondent relies on the affidavits of Brendan Money,[47] sworn 27 March 2017 and 2 May 2017. In brief summary, Mr Money deposed that:
[47]Mr Money is the Assistant Commissioner, Sentence Management Division, Corrections Victoria.
· since 17 October 2016, the applicant at Fulham has been accommodated in cottage style accommodation with kitchen facilities where he has been able to prepare his own food;
· the applicant has had an ongoing prescription for Anusol cream for his haemorrhoids, which he has not collected;
· despite twelve documented contacts with nursing staff at Fulham, the applicant has not complained of any issues to do with his haemorrhoids;
· at a case management review committee meeting held on 25 October 2016, the applicant reported ‘no issues at Fulham and it was noted that he works as a unit billet or cleaner and he received good work reports’;
And:[65]
But that test will, where appropriate, accommodate itself to differing degrees of criminality. This important rider to the general position was referred to by Winneke P (with whom Brooking and Charles JJA agreed) in R v Panuccio.[66] In response to a submission that the sentencing judge had failed to give proper weight to the effect that the applicant’s incarceration would have upon his elderly and disabled parents, his Honour said:[67]
It goes without saying, I think, that the graver the crime for which the prisoner is being sentenced the more difficult it will be to find exceptional circumstances, because the relief usually sought and generally necessary to alleviate the plight of the relevant family members affected will require absolution from incarceration.
[65]Ibid 98–9 [26].
[66]Unreported, Court of Appeal, 4 May 1998.
[67]At 6–7; see also R v Holland (2002) 134 A Crim R 451, at 452, 454 and 460–1.
In the circumstances, the remarks from Panuccio are apposite. The complaint that the judge gave too little weight to family hardship cannot be sustained. Indeed, it strikes me that the hardship to the applicant, and the other mitigating circumstances, in particular have been accommodated by the relatively moderate non-parole period fixed by the judge.
Finally, it was submitted in support of this ground that the judge imposed sentences at the ‘high end’ of the range of sentences for this offence, despite the applicant’s offending being in the ‘mid-range’ of this type of offending. The judge then imposed cumulation of fifty per cent as between the individual sentences, resulting in ‘a very high’ total effective sentence which ‘is in breach of the totality [principle]’.
These submissions should be rejected.
It may be observed at the outset that for some years cumulation in the order of fifty per cent between two sentences for culpable driving has not of itself been unusual. Hence, in Guariglia[68] the applicant pleaded not guilty to two counts of culpable driving. The applicant, aged 26 years, drove at high speed and in disregard of road rules in a built-up area, striking two pedestrians on the footpath, both of whom died from their injuries. Alcohol and drugs were not involved. The applicant had a large number of prior convictions, including a number of traffic offences. Upon conviction, the applicant was sentenced to six years’ imprisonment on each count, with three years of the second — fifty per cent — to be served cumulatively upon the first, resulting in a total effective sentence of nine years’ imprisonment. A non-parole period of five years and two months’ imprisonment — that is, almost 67 per cent of the head sentence — was fixed. Leave to appeal against sentence was sought on grounds asserting that the sentence imposed was manifestly excessive, and that the judge erred in ordering the extent of cumulation reflected in the total effective sentence. The central contention was that excessive cumulation had produced a total effective sentence which was manifestly excessive.
[68]R v Guariglia (2001) 33 MVR 543 (Winneke P, Brooking and Charles JJA).
So far as is presently relevant, Winneke P (with whom Brooking and Charles JJA agreed) observed:[69]
While I would agree with counsel that the judge must be careful to ensure that orders for cumulation do not produce a total sentence which infringes principles of totality, I am unable to agree that the judge’s discretion is otherwise inhibited in the case of culpable driving causing multiple deaths or injury. …
… So long as the cumulation does not offend the principle of totality it is, as I see it, properly within the exercise of a sound discretion to recognise the fact that the culpable driving has caused multiple deaths by cumulating a sensible portion of the sentence imposed for one offence upon the sentence imposed for the other.
[69]Ibid 547 [20]–[21].
The Court in Guariglia — which ‘was a very serious case of culpable driving emanating from the applicant's blatant disregard for the life and safety of others using the road’[70] — found there to be no error in cumulating fifty per cent of the sentence on the second count upon the first. Moreover, when re-sentencing on two counts of culpable driving following a successful Director’s appeal in Solomon,[71] the Court (Winneke P, Buchanan JA and O’Bryan AJA) made orders cumulating fifty per cent of the sentence on the second count upon the sentence on the first (leading to a total effective sentence of nine years’ imprisonment, with a non-parole period of six years being imposed).
[70]Ibid 545 [13].
[71]Director of Public Prosecutions v Solomon (2002) 36 MVR 425.
Guariglia and Solomon demonstrate that, without more, there is nothing remarkable about cumulation in the order of fifty per cent between individual sentences on two charges of culpable driving, it being necessary to ensure that the death of a second victim of a single episode of bad driving does not become a ‘meaningless statistic’.[72] Of course, in the decade and a half since those cases were decided, there has been a steady incremental increase in the ‘tariff’ for culpable driving, so that the individual sentences, total effective sentences and non-parole periods provide little guidance as to the appropriate sentences. Further, it is necessary to bear steadily in mind that the sentence in any given case must yield to its individual facts. Nonetheless, in a case such as the present, I do not regard cumulation of fifty per cent to be of itself uncommon. But more importantly, given the particular facts of this case, I do not regard the cumulation ordered as being manifestly excessive.
[72]Ibid 429 [19] (Winneke P, with whom Buchanan JA and O’Bryan AJA agreed).
Nor do I regard the individual sentences imposed on each charge as excessive. The sentences were not to be ameliorated by any plea of guilty. I agree with the judge, who, after referring to other culpable driving sentencing cases cited by defence counsel, observed in his reasons for sentence:
Many of the aggravating factors which can be present in these cases … are not present, as [counsel] pointed out, which I accept. But each case that comes before the Court, in particular in regard to culpable driving cases, is necessarily individual: here, as I have determined, it was the speed and position of the cars which combined to create such lethal circumstances over a distance of some three to four kilometres, where at any time such an accident could have occurred. The persons at risk by such behaviour were not only the three persons in those two cars, but all the drivers present on the highway in their vicinity during such driving.
Even accepting that the individual sentences, and total effective sentence produced by the order for cumulation, are ‘solid’ — the description given to them by senior counsel for the respondent —they cannot in my view properly be said to be so far outside the range as to warrant appellate intervention.
Finally, there is nothing in the non-parole period — which represents 62.5 per cent of the length of the head sentence — that invites scrutiny. It strikes me that the relatively moderate non-parole period in particular reflects the hardship and other mitigating factors upon which the applicant placed a deal of reliance.
I would not uphold ground 3.
Conclusion on sentence
With respect to sentence, leave to appeal should be refused on all grounds.
CROUCHER AJA:
Overview
I have had the advantage of reading in draft the reasons for judgment of the other members of the Court.
As for the conviction application, I agree, substantially for the reasons given by Priest JA, that Grounds 2, 3 and 4 cannot succeed. But, as I shall explain, there are, I think, significant errors disclosed by Grounds 1 and 5. These errors, however, do not give rise to any substantial miscarriage of justice because, on the evidence at trial, verdicts of guilty of culpable driving causing death (‘culpable driving’) were inevitable. Thus, like Priest JA, I would grant leave to appeal against conviction but dismiss the appeal.
As for the sentence application, I would grant leave to appeal but, for the reasons given by Priest JA, I would reject all grounds and dismiss the appeal.
My reasons for those conclusions follow.
Conviction application
Ground 5: ‘Merits criminal punishment’
While prevailing authority[73] provided otherwise at the time of the trial, in view of this Court’s subsequent decision in Bouch v The Queen,[74] the judge’s directions on the elements of culpable driving must be held to be in error in so far as they included a requirement that the relevant driving be of a character that ‘merits criminal punishment’.
[73]See R v De’Zilwa (2002) 5 VR 408 (‘De’Zilwa’).
[74]Bouch v The Queen [2017] VSCA 86 (‘Bouch’).
The error might be thought to have advantaged the applicant because it ‘created an additional bar to conviction’.[75] For reasons that follow, however, I think that, in the circumstances of this case, it was an error that had the potential to disadvantage the applicant, in two ways.
[75]See, e.g., Bouch, [2], [17] (Redlich and Weinberg JJA).
First, on any view of the evidence, the applicant’s driving immediately prior to the collision was very dangerous. Further, I think it is safe to say that any reasonable jury would conclude that that driving thoroughly merited criminal punishment. In those circumstances, ignoring the burden of proof for the moment, perhaps the applicant’s only hope at trial was to persuade the jury that, instead of verdicts of guilty of culpable driving, verdicts of guilty of dangerous driving causing death (‘dangerous driving’) were an adequate reflection of his behaviour.
There is, however, an unacceptable risk that this or any similar line of thinking was removed from the jury in circumstances where they were instructed that a conviction for culpable driving required proof that the driving be such as to merit criminal punishment but that, at least by implication, a conviction for dangerous driving involved no such requirement. Put another way, in view of those directions, the jury may have discounted the lesser alternative because the applicant’s behaviour surely merited criminal punishment and yet, of the two options available to them, only a conviction for culpable driving necessarily involved, and thereby adequately reflected, such a notion.
A second reason why the error may have disadvantaged the applicant arises out of a further comparison between the directions that should have been given and those actually given. As Priest JA points out, for the purposes of directions on negligent culpable driving pursuant to s 318(2)(b) of the Crimes Act, a majority of the Court in Bouch favours the De’Zilwa formulation with the expression ‘merits criminal punishment’ removed. His Honour also suggests that part of that formulation, once other necessary contextual amendments are made (simply by deleting some words), would appear to be as follows:
[T]he jury are required to find that the driving of the accused involved
sucha great falling short of the standard of care which a reasonable person would have exercised in the circumstances, andwhichinvolvedsucha high risk that death or serious injury would follow, that the driving causing death merited criminal punishment.
If that is correct, then a difficulty, as I see it, is that the original De’Zilwa formulation, which the judge (understandably) used in this case, is apt to have had the jury imposing a lower threshold of negligence than is required by the new formulation. This is because the original formulation (twice) employs the determiner ‘such’ – in ‘such a great falling short’ and ‘such a high risk’ – and links each to ‘meriting criminal punishment’, which leaves it very much to the jury to determine whether the driving involved a sufficient departure from the standard of care and was sufficiently risk-laden so as to merit criminal punishment; whereas the new formulation, shorn of those words, employs ‘a great falling short’ and ‘a high risk’ as absolutes. While it is possible that a jury, when considering the original formulation, might apply a higher threshold of ‘departure’ and ‘risk’ than the absolute or fixed levels of ‘departure’ and ‘risk’ involved in the new formulation, the risk that a lower threshold might have been applied cannot be ruled out.
After considering Ground 1, to which I now turn, I shall return to the question whether these errors resulted in any substantial miscarriage of justice.
Ground 1: Directions as to consideration of lesser alternatives
Unlike Priest JA, for reasons that follow, I take the view that the judge’s directions on the alternative verdicts concerning dangerous driving were in error.
First, I accept as correct, and as applicable to the present case, the following observations and statements of principle made by Redlich and Weinberg JJA in their joint judgment in Bouch,[76] where their Honours dealt with the same type of complaint about a very similar set of directions:
[76]See generally Bouch, [2] and [21]-[70] (Redlich and Weinberg JJA).
a) ‘Under the general rule in Stanton [v The Queen],[77] a jury is always entitled to commence its deliberations by considering not just the primary offence, but also a lesser alternative, should it wish to do so. It is then entitled to consider how, if at all, the deliberations on that lesser charge may bear upon the verdict in respect of the more serious charge’.[78]
b) ‘[T]he trial judge may – indeed must – direct the sequence of the jury’s verdicts but not the sequence of their deliberations. Nor should the trial judge say anything to the jury that may be taken as foreclosing or precluding the consideration of lesser alternative offences as part of their deliberations, even when there has been a plea of guilty entered in relation to one or more of them’.[79]
c) The High Court in King v The Queen[80] ‘was not suggesting that s 422A [of the Crimes Act], upon its proper construction, had altered the common law position that it is a matter for the jury as to how they go about or sequence their deliberations’.[81]
[77]Stanton v The Queen (2003) 198 ALR 1 (‘Stanton’).
[78]Bouch, [68].
[79]Ibid [70].
[80]King v The Queen (2012) 245 CLR 588.
[81]Bouch, [64].
Secondly, but for a point of difference I shall mention shortly, I accept Priest JA’s view that the directions in the present case are otherwise not materially different from those given in Bouch.
Thirdly, however, I differ from Priest JA in that I consider that the directions were in breach of the principles set out earlier, and therefore in error. I do so for the same reasons Redlich and Weinberg JJA gave for concluding that the equivalent directions given in Bouch were in error. After referring to Stanton, their Honours said this:[82]
[T]he directions given regarding the alternative verdict that might need to be considered would not have been understood by the jury as concerning merely the sequence of the verdicts to be brought in. Rather, from the language used, the jury were likely to have understood the directions as instructions as to the sequence that had to be followed with respect to their deliberations. Further, although both Stanton and the present matter were ‘one issue cases’, that should not obscure the probability that the repeated references by his Honour to the fact that they need not concern themselves with the lesser alternative would have led them to put that alternative entirely to one side in their deliberations, in the mistaken belief that they were obliged to do so.
[82]Ibid [37].
As I say, I think those reasons are equally applicable to the present case. More particularly, I am satisfied that it is likely that the directions given in the present case were taken by the jury to mean the following. First, the charges of culpable driving must be considered first. Secondly, the alternatives of dangerous driving were not to be considered, and no verdict of guilty of those offences could be returned, unless the jury were ‘first … satisfied that the appropriate finding is one of not guilty in regard to [culpable driving]’.
Fourthly, in my view, that the sole issue for determination at trial was whether the applicant’s driving was sufficiently negligent as to amount to culpable driving does not render the error in the directions unimportant. Rather, to adapt the reasons of Redlich and Weinberg JJA in Bouch,[83] the jury were entitled, if they wished to do so, to take into account the elements of dangerous driving, as well as the applicant’s formal admission to that behaviour, when considering what finding they should make with respect to culpable driving. Their right to do so was the same as it would have been had the applicant not made the admission but instead had simply pleaded not guilty and the judge had directed the jury as to the lesser alternatives that were available.
[83]Ibid [67].
Finally, as foreshadowed earlier, there is an additional feature of the directions in this case that make them more problematic than the equivalent directions in Bouch. In order to make this clear, I shall reproduce some of the directions extracted in the reasons of Priest JA, which include this additional direction:
… In this case the [applicant] has been charged with two counts of culpable driving … The law says that when a person is charged with that particular offence, you are, if you found them not guilty of that offence, then entitled to go on to consider what is known as a statutory alternative and you are entitled to find a person guilty of the offence of dangerous driving causing death.
I stress that for this to happen in either of these instances, Mr Foreman and members of the jury, you first need to consider the charge of culpable driving, you first have to be satisfied that the appropriate finding is one of not guilty in regard to either Counts 1 or 2. … you can only consider this alternative if you have found in regard to 1 or 2 [the applicant] not guilty. If you find in regard to 1 and 2 [the applicant] to be guilty, then you need not concern yourself with worrying about the alternative.[84]
[84]Emphasis added.
In my opinion, the highlighted passage adds at least one further difficulty, and perhaps a second. First, by requiring that the jury ‘have to be satisfied that the appropriate finding is one of not guilty [of culpable driving]’ before considering the alternative of dangerous driving, there is an even greater risk that the jury understood that they were to give no consideration to dangerous driving, or its elements, in deliberating on their verdicts on culpable driving.
Secondly, it is arguable that this instruction goes even further and, in one respect, ‘water[s] down or [has] the tendency to reverse the [judge’s] directions … about the onus and burden of proof’.[85] In Hellings v The Queen, in their joint judgment, Murray, Wheeler and McLure JJ said that ‘[t]here is a wealth of difference between being unanimously persuaded that the accused is not guilty and failing to be unanimously persuaded that the accused is guilty’.[86] In my view, by requiring the jury to be ‘satisfied that the appropriate finding is one of not guilty’, the direction in this case arguably falls somewhere between these two poles. It is a direction that should not have been given since, in my view, it courted two risks: first, a risk that the jury understood that they had to reach some state of satisfaction as to whether it was appropriate to find the applicant not guilty of culpable driving before considering the alternative offences; and, second, a risk of undermining the jury’s understanding of the directions the judge gave on the burden and standard of proof generally.
[85]Simms v The Queen (2004) 148 A Crim R 433, 435 [10]-[11] (Murray J).
[86]Hellings v The Queen [2003] WASCA 208, [19].
In the circumstances of this case, however, I do not think it is either appropriate or necessary to determine whether these are the correct conclusions. First, I did not understand either the Court or the parties to raise the possible impact of the directions on the burden and standard of proof. Thus, particularly given that there are arguments to be had either way, I do not think it is appropriate to determine these issues. But, secondly, despite the fact that this might be an error that goes to a matter as fundamental as the burden and standard of proof, for reasons I shall give shortly, I think there could be no substantial miscarriage of justice in this case in any event.[87]
Other grounds
[87]This conclusion makes it unnecessary to consider the application of s 16 of the Jury Directions Act 2015.
I can deal with Grounds 2, 3 and 4 very briefly.
It is perhaps arguable that the complaint in Ground 2 – concerning the directions on the differences between the elements of culpable driving and dangerous driving – is, at least in part, established by the errors in the directions disclosed by Grounds 1 and 5. But Ground 2, as argued by the applicant, should fail, for the reasons given by Priest JA, and, accordingly, can add nothing to the complaints in Grounds 1 and 5.
I also agree with his Honour, for the reasons he gives, that Grounds 3 and 4 cannot succeed either.
No substantial miscarriage of justice
In Nudd v The Queen,[88] in their joint judgment, Callinan and Heydon JJ said that, ‘just as in medicine there may be terminal cases which not even the most brilliant surgeon can remedy, there will be prosecution cases which an accused could not successfully defend with the aid of the most resourceful and competent of counsel’.
[88]Nudd v The Queen (2006) 225 ALR 161, 200 [162].
Similar remarks apply to the prosecution case against the applicant. ‘Inevitable’ is an emphatic word. But, for the reasons given by Priest JA, and the additional reasons given by Ashley JA, on the evidence at trial, it was inevitable that the applicant would be found guilty of culpable driving, even if the errors identified in Grounds 1 and 5 had not been made. Further, while the applicant had the benefit of the most resourceful and competent counsel at trial, I am satisfied that the evidence was and is so overwhelming that, even with such counsel again at a new trial on the same evidence and with all directions in accordance with law, no reasonable jury could fail to return verdicts of guilty of culpable driving.
To be sure, errors of the kind disclosed by Grounds 1 and 5 may, in some cases, give rise to a substantial miscarriage of justice. This, however, is not such a case.
The applicant’s convictions must stand.
Proposed orders
I would grant the application for leave to appeal against conviction but dismiss the appeal.
Sentence application
I turn briefly to the sentence application.
While I think the level of cumulation was firm and produced an equally firm total effective sentence, I am not satisfied that any aspect of the sentence is afflicted with error. In particular, I do not accept that either the individual sentences, the level of cumulation, the total effective sentence or the non-parole period is manifestly excessive or otherwise in breach of totality. On the contrary, in my respectful opinion, all aspects of the sentence were open to the judge in the exercise of sound discretionary judgment.
While I would grant leave to appeal against sentence, for these reasons and those given by Priest JA, I would reject all grounds and dismiss the appeal.
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