Herbert v Northern Territory of Australia
[2003] NTCA 6
•6 March 2003
Herbert v Northern Territory of Australia & Anor [2003] NTCA 6
PARTIES:ALOYSIUS JOSEPH HERBERT
v
NORTHERN TERRITORY OF AUSTRALIA
and
DONALD GEORGE WILLIAMS
TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:AP5/02 (9828201)
DELIVERED: 6 March 2003
HEARING DATES: 9 December 2002
JUDGMENT OF: MILDREN, THOMAS and RILEY JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:P. Barr
First Respondent: M. Grant
Second Respondent: No appearance
Solicitors:
Appellant:David Francis & Associates
First Respondent: Withnall Maley
Second Respondent: Terrill & Associates
Judgment category classification:
Judgment ID Number: tho200307
Number of pages: 29
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINHerbert v Northern Territory of Australia & Williams [2003] NTCA 6
No. AP5/02 (9828201)BETWEEN:
ALOYSIUS JOSEPH HERBERT
Appellant
AND:
NORTHERN TERRITORY OF AUSTRALIA
First Respondent
AND:
DONALD GEORGE WILLIAMS
Second Respondent
CORAM: MILDREN, THOMAS & RILEY JJ
REASONS FOR JUDGMENT
(Delivered 6 March 2003)
MILDREN J
I agree that the appeal must be dismissed for the reasons given by His Honour, Justice Riley and I also agree that the appellant pay the first respondent's costs of and incidental to the appeal.
THOMAS J
This appeal involves a consideration of whether the actions of the second respondent in driving a motor vehicle amounted to an offence under the Criminal Code such as to entitle the appellant to an assistance certificate pursuant to the provisions of the Crimes (Victims Assistance) Act.
Section 12(e) of the Crimes (Victims Assistance) Act provides as follows:
“12.Assistance certificate not to be issued in certain circumstances
The Court shall not issue an assistance certificate –
…..
(e) in respect of an injury or death caused by, or arising out of, the use of a motor vehicle except where that use constitutes an offence under the Criminal Code; …”
The application proceeded to hearing in the Local Court before Mr Loadman SM. The appellant, Mr Herbert, gave evidence in which he made reference to an affidavit sworn by him. In his affidavit sworn 15 June 2000 (AB 67), Mr Herbert stated that he was the owner driver of a private hire car PH 95.
At about 2.00 am on 1 August 1998, Mr Herbert was involved in a motor vehicle accident. He was in a coma for approximately five days. He was later informed that he had been involved in a motor vehicle accident at the intersection of Bagot Road and McMillans Road, Millner as he was executing a right hand turn off Bagot Road into McMillians Road. The vehicle driven by Mr Herbert was a 1995 Holden Statesman, registration PH 95.
Mr Herbert had no memory of how the accident occurred. He suffered extensive physical and psychological injuries including a ruptured spleen, ruptured liver, ruptured diaphragm, fractured ribs, pain and stiffness of the right shoulder, diplopia and closed head injuries.
The passenger in his vehicle died as a result of the accident.
The motor vehicle the appellant was driving was damaged beyond repair. There was extensive damage to the left hand side of his motor vehicle consistent with it having been hit with great force.
Evidence was given by Dean Anthony Barrett a senior constable attached to the Accident Investigation Unit. Constable Barrett gave evidence that he was called onto duty on 1 August 1998 to a motor vehicle accident at the intersection of Bagot Road and McMillans Road.
When he arrived, there was a red four wheel drive vehicle in the centre of the intersection. There was a white Holden Statesman parked on the median strip as you turn right into McMillians Road. Constable Barrett had prepared a plan of the intersection (AB 77) this plan indicates a scuff mark. In his evidence to the learned stipendiary magistrate, Constable Barrett gave the following evidence (AB 032):
“From your experience are you able to say how it would have caused the scuff mark?---When the Holden Jackeroo came into collision with the Holden Statesman on the passenger side, we have what we call a point of impact and just prior to the scuff mark it was indicated by some glass and a hub-cap from the actual - or centre, it’s a little hub-cap centre steel aluminium alloy, it goes in the centre of the wheel, that goes straight to the road. When the impact took place the Statesman would have rotated to the right because it had been struck from the left, and then the vehicle would have been at that stage travelling at a lot slower speed than first going through the intersection and would have rolled to its final resting position on the actual median strip.
That vehicle being - - -?---The Statesman.”
He gave further evidence (AB 34)
“From your observations at the scene of the accident, are you able to conclude what occurred?---From my observations at the scene, I would say that the direction of travel of the Holden Jackeroo was travelling inbound along Bagot Road, approaching the intersection of McMillians Road. The direction of travel of the private hire car was making a right-hand turn from Bagot Road into McMillians Road and a collision occurred more or less in the extreme left-hand turn lane for the private hire car, and as a result both vehicles ended up at their designated points of rest a short time later. The intersection is controlled by traffic control signals. I was unable to determine which vehicle had encroached through the red light, unfortunately, the only person that can tell us that would be the deceased.
The deceased, from your knowledge, are you aware as to where the deceased was at the time of the accident?---He was in the front left-hand passenger seat of the private hire car.”
Further evidence was given that the intersection is well lit and that there had been no fault in the traffic lights at the relevant time. Senior Constable Barrett gave this further evidence(AB 41):
“If it was suggested to you that the accident in fact occurred in circumstances where the Jackeroo was travelling down McMillians Road and turned right into Bagot Road at the time of the collision, would you accept that as a credible version?---Definitely not.
Why do you say that?---If that had taken place, the accident damage would be on the opposite side of the hire car and the vehicles wouldn’t have ended up where they are, they would have ended up in a different tangent, if you apply the laws of physics for collision of objects, it wouldn’t fit in the actual scenario.”
In his reasons for decision the learned stipendiary magistrate makes reference to the evidence of Senior Constable Barrett including at par 14 to 19 inclusive which appear at AB 145 - 146 and are set out hereunder:
“14. Barrett’s reconstruction of what had occurred was that the Holden Jackeroo was travelling south in Bagot Road. The Holden Statesman was making a right turn in the extreme right turn lane from Bagot Road into McMillians Road.
15.There were several marks on the road but none of them appeared in his observations relevant to any issue before the Court.
16.He estimated the pre-collision speed of the Holden Jackeroo at 80 kilometres an hour from the damage, but conceded that that estimate was not reliable and was solely based on that premise.
17.He said that photographs 2 and 3 of Exhibit A4 showed the Holden Jackeroo in its actual position of the intersection after the collision. He said that he would have expected skid marks to have been present but there were none that he was able to isolate as being skid marks of either the Holden Jackeroo or the Holden Statesman.
18.When further examined by Mr Francis, Barrett rejected a proposition that the Holden Jackeroo prior to the collision could have been travelling west in McMillians Road intending to make a right hand turn into Bagot Road. He opined the damage to the vehicles was inconsistent with that being the case and that was confirmed in further cross-examination.
19.Exhibit A3 is the certificate of conviction of the second respondent reflecting his conviction on 9 November 1998 for the various charges, there being 4 in all. Relevant in relation to the issue to be determined by the Court is the second of those convictions, namely:
‘On 1 August 1998, at Darwin, he drove a motor vehicle, namely Holden Jackeroo, NT 443-262, on a public street, namely Bagot Road, whilst under the influence of intoxicating liquor or a drug or a psychotropic substance to such an extent as to be incapable of having proper control of that motor vehicle.’”
The second respondent did not give evidence on the application by the appellant under the Crimes (Victims Assistance) Act.
The Appeal Book contains a transcript of the proceedings before another magistrate, Mr Gillies SM, with respect to charges against the second respondent who entered pleas of guilty on 21 October 1998 to charges of failing to provide sample of his breath, two charges with respect to leaving the scene and a charge of drive under the influence as set out in par 19 of Mr Loadman’s decision. Mr Loadman SM had before him as Exhibit A2 a transcript of the proceedings before Mr Gillies SM in the Darwin Court of Summary Jurisdiction when the second respondent was found guilty of the four charges.
This transcript records the proceedings in the Court of Summary Jurisdiction before Mr Gillies SM. The Police Prosecutor read the facts to the learned stipendiary magistrate who was dealing with the charges. This appears at AB 109 - 111:
“Sir, on Friday evening, 31 July, this year, the defendant Williams went to Shenannigans Pub in Darwin and consumed five mid-strength Carlton beers.
Later that night the defendant left the premises and walked to the bottle shop where he purchased a dozen Carlton Cold stubbies. The defendant then walked to the Esplanade and sat down with an unknown male person and consumed a further nine beers.
In the early hours of the morning of 1 August the defendant decided to go home, however, had insufficient funds for a taxi. The defendant then decided to drive his own vehicle, being a red Holden Jackeroo, home. The defendant started the vehicle and drove off.
About 2 am the defendant was driving the vehicle in-bound on Bagot Road. Upon arriving at the intersection of Bagot Road and McMillians Road a private hire car was entering the intersection and was negotiating a right-hand turn from Bagot Road into McMillians Road.
The defendant’s vehicle struck the private hire car directly in the centre of the passenger side - - -
HIS WORSHIP: Stop, please. Where was it struck?
MR PEACH: Sir, the defendant’s vehicle struck the private hire car directly in the centre of the passenger side, causing the passenger door to crush into it.
HIS WORSHIP: Yes.
MR PEACH: The defendant’s vehicle then spun around and rolled onto the driver’s side before coming to rest in the middle of the in-bound lane.
HIS WORSHIP: Yes.
MR PEACH: The private hire car was spun around and ended up on the median strip on McMillians Road.
HIS WORSHIP: Yes.
MR PEACH: A passing vehicle stopped and assisted the defendant from his vehicle. Upon the defendant getting out of the vehicle he stated that he needed to relieve himself and ran off across Bagot Park.
HIS WORSHIP: Yes.
MR PEACH: Several of the vehicles had stopped at this stage and were rendering assistance to the driver and passenger in the private hire car.
The police conducted a search of the area to locate the defendant and eventually located him hiding under a tree in Old McMillians Road behind the velodrome.
When spoken to about the accident he stated that he was sleeping.
HIS WORSHIP: What, if he was sleeping when found or sleeping when driving?
MR PEACH: Sleeping when driving, sir.
HIS WORSHIP: Yes.
MR PEACH: The police noted that the defendant had fresh blood and scrape marks on his right arm and leg. It was also noted the defendant was extremely unsteady on his feet and his breath smelled strongly of liquor.
HIS WORSHIP: Yes.
MR PEACH: The defendant was arrested and taken to the police station for breath analysis. The defendant was instructed in relation to supplying a breath sample, but replied, ‘No, I was not driving so I’m not giving you a breath test’.
The defendant then sat there with his arms folded and refused to co-operate. He was taken to the Darwin Hospital in order for a blood test to be obtained and for his injuries to be assessed. The blood test was obtained, however, the defendant refused all medical assistance relating to his own injuries.
Sir, about 11 am on Saturday, 1 August the police conduct a record of interview with the defendant. He admitted drinking the beer at both Shenannigan’s and the Esplanade. He also made admissions into driving the vehicle home from the Esplanade. He further stated he could not recall anything after this until his arrest by police in Old McMillians Road.
Sir, a short time later the defendant was conveyed to the Royal Darwin Hospital for the purpose of supplying blood for DNA testing, due to the blood being located in the defendant’s vehicle.
An inspection of the vehicle revealed a blood smear was evident on the driver’s side of the vinyl roof, the windscreen and the ignition keys. Samples of these were obtained by forensic.
HIS WORSHIP: Yes.
MR PEACH: The passenger in the private hire car, a Craig Melville had sustained serious injuries and was admitted to hospital with critical injuries and subsequently died of those injuries on 12 August.
Sir, the driver of the private hire car had also sustained serious injuries and has since been released from hospital. However, he’s not expected to return to work or be able to conduct normal living conditions for some time.
Sir, at the time of the offence all roads mentioned were public streets. The traffic was light. Due to the actions of the defendant not remaining at the scene both passengers in the private hire car did not receive any form of medical treatment or assistance, generally, from the defendant.”
Mr Cassells, who appeared for the defendant to the charges being the second respondent to this action, admitted the facts on behalf of his client. Mr Cassells then said: “There are some exceptions which won’t affect the pleas, so I’ll address you on those as I go through”.
Subsequently, Mr Cassells submitted that the only contest the defendant had with the Crown facts was that the defendant did recollect going into the intersection and did recollect the traffic control lights being in his favour. At no time was there a denial of the allegation that when first spoken to by police under a tree behind the velodrome in Old McMillians Road about the accident he had said he was sleeping when driving (AB 114).
The transcript shows that Mr Cassells made lengthy submissions on the plea of guilty essentially endeavouring to persuade the learned magistrate not to impose a period of imprisonment. At the conclusion of these submissions the learned stipendiary magistrate stated he intended to impose a gaol sentence and that he would be giving reasons for the decision. The court was then adjourned and resumed again on the same day.
On the resumption of the proceedings, Mr Cassells indicated that Donald Williams had informed him he had a recollection of one aspect of the events that may have some relevance to the learned stipendiary magistrate’s views. Donald George Williams was then called to give evidence. He gave evidence (AB 129) that:
“Can you tell the court what you recollect of the accident?---I was heading toward - down McMillans Road towards Bagot Road, took the intersection intending to turn right at Bagot and the light was green, entered the intersection and from out of nowhere, the private hire car was in front of me and we collided.
Right.
HIS WORSHIP: Stop please. Can you slow it down. Yes, please go on.
MR CASSELLS: Do you have any recollection from which direction the private hire car approached the intersection?---I would be 90% sure it was from my left.
All right.
HIS WORSHIP: Stop please. Yes.
MR CASSELLS: How was it that you were travelling down McMillans Road intending to turn right into Bagot?---I had missed the turn-off to go to my residence.
Which turn-off?---Rapid Creek Road.
Wait a moment so His Worship can note the evidence.
HIS WORSHIP: Yes, please continue.
MR CASSELLS: Sorry, you mentioned something about missing a turn-off?---Normally, I would have turned right to go up Rapid Creek Road to where I was living at the time.
And where were you living at the relevant time?---In Millner in Carrington Street.”
In cross examination by the police prosecutor, Mr Williams agreed he told police at the time he was interviewed which was at 11.00 am on the morning of the accident he could not recall anything with regards to the accident at McMillians Road, he could only recall drinking the beers at Shenannigans, drinking the beers at the Esplanade and then his next recollection was being woken up in Old McMillians Road.
The learned stipendiary magistrate stated that he rejected the evidence given by Mr Williams and concluded Mr Williams was reconstructing the events. The learned stipendiary magistrate also stated that he added to that the evidence about the amount of alcohol Mr Williams had consumed, that and his statement that he had received a knock on the head, to have no confidence that the evidence Mr Williams was giving was recollection. The magistrate discounted the evidence as being a reconstruction.
The statement attributed to Mr Williams that when police found him in the nearby bushes soon after the accident, he had told the police officer he was sleeping when driving was not referred to again in those proceedings.
The learned stipendiary magistrate sentenced Mr Williams to a total eight months in gaol and disqualified him from hold a driver’s licence for three years.
On 15 February 2001, Mr Loadman SM delivered his written reasons for decision with respect to the application pursuant to the Crimes (Victims Assistance) Act. His Worship made the following findings at par 29 to 34 inclusive (AB 148 - 149):
“29.This Court finds the following facts to be established on a balance of probabilities which is the designated standard of proof in terms of section 17(1) CVA.
30.That at approximately 2 am on 1 August 1998 the applicant was the driver of a Holden Statesman travelling on the extreme right hand turn lane as he approached the intersection of Bagot and McMillians Road, the lane designated to make a turn into McMillians Road, but being one of two such designated lanes. That he commenced executing a right hand turn. That when he was approximately in the middle of the south bound lane of Bagot Road, a Holden Jackeroo drive by the second respondent collided with the left or passenger side of the Holden Statesman. The Holden Jackeroo was travelling at least 80 kilometres an hour. The impact was a forceful one, sufficient to cause the damage which has already been set out elsewhere in this decision.
31.That given the quantity of alcohol ingested by the second respondent he was so intoxicated ‘as to be incapable of having proper control of that motor vehicle’ (the Holden Jackeroo).
32.That the second respondent was asleep at the wheel immediately prior to the collision as a consequence of his excessive alcohol consumption.
33.That the second respondent was not at any time proximate to the collision travelling down McMillians Road in a westerly direction as he allegedly but belatedly and incredibly asserted.
34.As a consequence of these facts as found, it must be obvious that the Court is unable to say whether the Holden Statesman entered the intersection in contravention of a traffic signal or indeed whether the second respondent did so. This Court does find that it is probable that the vehicle driven by the applicant had at all relevant times its headlights illuminated in accordance with the applicant’s standard practice when driving at night. Indeed it is highly improbable that with a fare paying passenger it can be contemplated seriously that the journey was even in part effected without the operating of the Holden Statesman’s headlights.”
His Worship found on the balance of probabilities that the conduct of the second respondent immediately prior to the collision leading up to that moment in time, was such as to constitute the elements necessary to found a finding of guilt on a balance of probabilities a dangerous act as defined in s 154(1) of the Criminal Code.
The learned stipendiary magistrate concluded as follows (AB 153):
“55.This Court has no difficulty in concluding and it seems to the Court obvious that the applicant’s injuries arose out of the driving of a motor vehicle on the night in question by the second respondent.
56.Insofar as there may be, arguably or otherwise, a conflict between the verbiage used in the relevant sections of the legislation, the interpretation which is most favourable to the applicant must be the interpretation which is applicable having regard to the obligation to interpret this legislation in ‘a liberal and generous manner’ (supra Schmidt).
57.In the circumstances it is this Court’s decision that it is not incumbent on the applicant to demonstrate that the injuries sustained by him were due to some discrete blameworthy foreseeable act by the second respondent and consequently that the applicant is entitled to an assistance certificate in an appropriate sum.”
This decision was the subject of appeal. The appeal came before Martin CJ. In par 31 (AB 220) of his reasons for judgment, Martin CJ said:
“There was a bare minimum of material before the Local Court suggesting that the offender was asleep. That is what the prosecutor told the Court of Summary Jurisdiction the police told him as to what the offender told them. It was not accepted by the offender before the Court of Summary Jurisdiction. The offender’s case before that Court was contrary to that alleged in admission to police. Variously, through his counsel and in his sworn evidence, he clearly advanced versions of the events which were to the contrary. The learned Magistrate in the Court of Summary Jurisdiction rejected the offender’s evidence, but there was then no evidence upon which he could base a finding that the offender was asleep. The only basis for it was the assertion from the Bar table by the prosecutor which was not unequivocally admitted on behalf of the offender. It was not evidence.”
I consider the learned stipendiary magistrate was entitled to make the finding on the balance of probabilities that Donald Williams was asleep at the time of the collision. Accordingly, the second respondent was driving while heavily intoxicated and failing to keep a proper lookout.
The second respondent’s admission to this effect to a police officer shortly after the accident was contained in the Crown facts. It was not one of the specific matters identified as being in dispute. In the Court of Summary Jurisdiction, counsel for Mr Williams had submitted that his client entered the intersection on a green light. This was inconsistent with his client being asleep. However, it did not address the agreed facts that very soon after the accident the second respondent had admitted to a police officer that he was asleep when driving. Mr Williams then gave evidence of a completely different version of how the accident occurred. The learned stipendiary magistrate rejected this evidence on the basis of it being a reconstruction and because Mr Williams had made a statement at about 11.00 am on the morning of the accident to the effect that he had no recollection of what had occurred.
The evidence given by the second respondent before Mr Gillies SM as to his direction of travel prior to the accident was quite bizarre. It is completely at odds with the objective evidence given by Senior Constable Barrett. It was given by the second respondent shortly after he heard the learned stipendiary magistrate indicate he intended to impose a gaol sentence. It appears to have been a last ditch effort to persuade Mr Gillies SM not to impose a gaol sentence. It was not credible evidence. It was rejected by Mr Gillies SM. That the second respondent should give sworn testimony to this effect, which was completely rejected by the learned stipendiary magistrate, must effect the credibility of his instructions to his counsel that the traffic control lights were in his favour.
His Honour found that the learned stipendiary magistrate had misdirected himself as to the elements of the offence constituted by s 154 of the Criminal Code (AB 222):
“…Furthermore, there was not before the Local Court evidence or other material upon which the court could rely in making the findings as to what the offender did or did not do causing the vehicle he was driving to collide with that being driven by the victim.”
The appeal to this Court is set out on AB 223: The grounds of appeal are:
“1. That the Learned Chief Justice Martin erred in law in finding that the act of the Second Respondent in driving his motor vehicle in circumstances where the Second Respondent was so heavily intoxicated so as to be incapable of controlling the motor vehicle then being driven by him did not itself constitute on the balance of probabilities, an offence by the First Respondent under the provisions of Section 154 of the Criminal Code thus entitling the Appellant to the issue of an assistance certificate pursuant to the provisions of the Crimes (Victims Assistance) Act 1982 (NT).”
The appellant’s case on this appeal is that there was sufficient evidence before the Local Court to positively satisfy the Court that the second respondent had committed an offence of “dangerous act” contrary to s 154 Criminal Code Act.
Mr Barr, counsel for the appellant, further submitted that the appellant was a “victim” within the meaning of the Crimes (Victims Assistance) Act, in that he was injured as the result of the commission of that offence and hence entitled by law to apply to the Court for an assistance certificate.
Mr Grant, counsel for the respondent, submits the learned stipendiary magistrate fell into error and the Court of Appeal was right in correcting that error on the following basis:
“(1) There was no evidence at all upon which to base a finding that the collision was caused by any diminution in the second respondent’s ability to react, brake, etc. The learned Magistrate assumed that the accident was caused by fault on the part of the second respondent, which assumption was not properly open. The learned Magistrate further assumed that the fault (act or omission) on the part of the second respondent was some impairment due to intoxication. To do so was to elevate intoxication per se to the status of dangerous act. That assumption was not properly open on the formulation in Volz (at 402). If, for example, the first respondent’s vehicle had driven directly into the second respondent’s path with no warning and no opportunity to avoid the collision, the fact of the second respondent’s intoxication and any consequent diminution in faculty would be entirely irrelevant.
(2) The learned Magistrate has not expressly relied upon the finding that the second respondent was asleep at the time of the accident to arrive at the determination that the second respondent was in breach of section 154 of the Criminal Code. Nor was it open for him to do so. There was no evidence upon which to base such a finding. The finding appears to be drawn from certain material contained in a precis of facts used for the purpose of earlier criminal proceedings. The discussion in relation to the precis appears at paragraphs [21], [22] and [23] of the Reasons for Decision. That precis could not properly form evidence for the purpose of the application before the learned Magistrate: see s 17(2) of the Crimes (Victims Assistance) Act. Neither the precis nor any discussion of it in the context of the criminal proceedings fell within the ambit of section 17(2). They did not constitute any ‘transcript of evidence’ for the purposes of that provision. Additionally, it seemed to be a matter of agreement between counsel for the second respondent and the learned Magistrate during the course of submissions that the evidence of the second respondent given during the course of the criminal proceedings displaced what was contained in the precis for the purposes of the plea: see page 56 of the Transcript of Proceedings dated 31 January 2001. Even if there was evidence to support the finding that the second respondent was asleep at the time of the accident, there was no evidence upon which to base a further finding that the act was causative of the collision.”
I do not accept either of these submissions. With respect to (1) I reject the submission for the following reasons:
In R v Volz the Crown had not charged driving under the influence as a dangerous act Martin J at 401 states:
“There is only one act specified in the indictment in this case as constituting the dangerous act, that is, the driving of the motor vehicle at an excessive speed. The words following describe the alleged consequence of that act. The allegation that the applicant was under the influence of alcohol is put forward in the indictment only as a circumstance of aggravation. The act of driving in the manner described goes to the offence, the state of intoxication to penalty, if the offence is proved. There is a danger that the use to which evidence of intoxication may be put can be confused.
It is not a constituent element of the offence that the accused be shown to have been under the influence at the time of the doing of the act or making the omission. …”
His Honour at p 402 in this judgment stated:
“… Assuming, which I much doubt, that driving under the influence simpliciter is a dangerous act for the purpose of the section, it was not put forward by the Crown in that way. The Crown relied only on speed as being the feature of the driving which constituted the driving as a dangerous act. …”
and at 403:
“Section 154(4) draws the distinction I have been trying to demonstrate. It refers to the doing of an act whilst under the influence of the intoxicating substance. The state of being under such an influence is not a dangerous act. Evidence of whether a person is under the influence of an intoxicating substance at the time of doing the act or making the omission complained of is relevant only to explain the reason why the act or omission took place and as going to proof of that aggravating circumstance.”
Kearney J who also allowed the appeal, although on grounds different to the grounds found by Martin J and Asche CJ, stated at 395:
“I consider that in an appropriate case driving while under the influence of intoxicating liquor, simpliciter, may be charged as a dangerous act, under s 154(1); this was conceded both at the trial (Appeal Book, p 16) and by Mr Mildren QC before this Court (transcript, p 108). It was also the view of the trial judge (Appeal Book, p 146). This was the way the indictment was formulated in R v Ireland; it is set out in (1987) 49 NTR 10 at 11. See also the observation by Muirhead J in Ireland at 28 that ‘there may be cases where the fact that an accused is under the influence of liquor alone turns a legitimate or lawful act into a dangerous act. …”
I agree with the submission made on behalf of the appellant that R v Volz is not determinant of the issues raised in this case. R v Volz involved consideration of an indictment which had not charged driving under the influence as a dangerous act. The relevant ground of appeal for consideration by the Court of Criminal Appeal was as to whether the trial judge had erred in directing the jury that it could take into account evidence of intoxication.
I have already stated reasons why I consider the learned stipendiary magistrate was entitled to find that the second respondent was asleep and the evidence on this issue that was before him. There is evidence the second respondent was heavily intoxicated - see affidavit of Jon Munro Dean (AB 104) which was tendered on the application to the Local Court.
Mr Dean stated in his affidavit sworn 4 January 2001 that between January 1998 to November 1998 he was employed as assistant bar manager and bottle shop attendant at the Airport Hotel. On the advice of an employee he spoke to Donald Williams at about 7.30 pm on 31 July 1998. He had been informed Don Williams had been drinking beer for four hours and had started to drink bourbon at an unknown time. He observed that Don Williams’ speech was slurred, he was glassy eyed and was having difficulty playing pool. He informed Don Williams the hotel could not serve him any more alcohol. Don Williams finished his drink and left the hotel.
The second respondent had been convicted of an offence that on the relevant date he was under the influence of intoxicating liquor or a drug or psychotropic substance to such an extent as to be incapable of having proper control of the motor vehicle.
At a time after the collision police noted that the second respondent was extremely unsteady on his feet and his breath smelt strongly of liquor - AB 110.16. That was admitted AB 111.11 and 114.1.
I agree with the submission made by counsel for the appellant that there is further support for the fact that the second respondent was heavily intoxicated on this night. A map of the area was tendered on this appeal. The second respondent was at the time of the collision living in Carrington Street, Millner (AB 130). His admitted purpose in driving was to drive home (AB 109.14). His evidence at AB 130 does not make sense if he had been driving home. This evidence was rejected by the learned stipendiary magistrate and completely contrary to the accident investigation evidence. To be travelling inbound along Bagot Road and to come into collision with another vehicle at the intersection of McMillians Road does not fit logically with an intention to return home to Carrington Street after a further bout of drinking at the Esplanade. An intention to drive home after drinking at the Esplanade in the early hours of the morning of 1 August 1998 is part of the admitted facts before the Court of Summary Jurisdiction.
I agree with the submission made by counsel for the appellant that:
“The dangerous act was the second respondent’s driving a motor vehicle whilst heavily intoxicated. It is clear that if the second respondent, intoxicated as he was, had refrained from driving his motor vehicle in the early morning of 1 August 1998, the collision would not have occurred. The commission of the offence had the result that the second respondent was on the same road as the appellant, at the same intersection, at the same time, such that the collision occurred. In that sense, the appellant’s injuries were suffered by him as the result of the commission of the offence, or as result of the offence. The second respondent’s criminality was in driving notwithstanding his intoxication. The question is not as put by the learned Chief Justice at AB220, paragraph [30], namely whether the collision (would or) would not have occurred if the offender had been sober, but rather, the question is whether the injury would have occurred if the second respondent had refrained from driving.”
The Crimes (Victims Assistance) Act is beneficial legislation. This application must be considered in this legal framework (Chappel v Hart (1998) 195 CLR 232). I have concluded there is sufficient evidence that on the balance of probabilities the second respondent committed an offence under s 154 of the Criminal Code. The applicant sustained an injury as a result of the offence committed by the second respondent and is entitled to an assistance certificate pursuant to the provisions of the Crimes (Victims Assistance) Act.
I would allow the appeal.
As I am in the minority in coming to this conclusion, it is neither necessary or appropriate to formulate any consequential orders.
RILEY J
The appellant was injured in a motor vehicle accident that occurred on 1 August 1998 at or in the vicinity of the intersection of Bagot Road and McMillans Road in Darwin. The appellant was the driver of a Holden Statesman motor vehicle which came into collision with a Holden Jackaroo motor vehicle driven by the second respondent. As a consequence of the collision the second respondent was charged with, and pleaded guilty to, having driven his motor vehicle “whilst under the influence of intoxicating liquor or a drug or a psychotropic substance to such an extent as to be incapable of having proper control of that motor vehicle”.
The appellant made application pursuant to the provisions of the Crimes (Victims Assistance) Act for an assistance certificate which, if granted, would provide the appellant with payment of a sum of money by way of assistance for injuries suffered by him in the motor vehicle accident. To be entitled to obtain an assistance certificate it was necessary for the appellant to establish that he was a “victim” for the purposes of the scheme, that is, he was a person who was injured “as the result of the commission of an offence by another person”. An offence for the purposes of the scheme is “an offence, whether indictable or not, committed by one or more persons which results in injury to another person”. The Act specifically provides that a court shall not issue an assistance certificate “in respect of an injury or death caused by, or arising out of, the use of a motor vehicle except where that use constitutes an offence under the Criminal Code”.
As the injury suffered by the appellant arose out of the use of a motor vehicle, to succeed in his claim he had to establish that the second respondent conducted himself in a manner that constituted an offence under the Criminal Code. He sought to do this by reference to s 154 of the Code which provides as follows:
(1)Any person who does or makes any act or omission that causes serious danger, actual or potential, to the lives, health or safety of the public or to any person (whether or not a member of the public) in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger and not have done or made that act or omission is guilty of a crime and is liable to imprisonment for 5 years. (See back note 2)
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(5)Voluntary intoxication may not be regarded for the purposes of determining whether a person is not guilty of the crime defined by this section.
The matter came before the Local Court in Darwin and that court held that the appellant was entitled to the issue of a compensation certificate. The certificate was issued on 5 June 2001. The decision of the Local Court was appealed and on 10 January 2002 the appeal was upheld. The focus of the appeal to the Supreme Court and also to this Court centered upon whether an offence constituted by s 154 of the Criminal Code had occurred in the circumstances of the matter and, if so, whether the injuries suffered by the appellant were the result of the commission of that offence.
Proceedings under the Crimes (Victims Assistance) Act are to be conducted with as little formality and technicality as the circumstances of the matter permit. It is not necessary for the applicant to show that the injury or death resulted from an offence where a conviction has been obtained, it is sufficient to establish, on the balance of probabilities, that injury was suffered by the victim as a result of an offence as defined.
The evidence before the Local Court when the Crimes (Victims Assistance) Act proceedings were considered consisted of a transcript of the proceedings before the Court of Summary Jurisdiction at the time the second respondent was convicted, the testimony of the appellant, the testimony of the investigating constable and the evidence of the second respondent. An affidavit by a hotel bar attendant to the effect that the second respondent was drunk at about 8pm on the evening preceding the accident was also received.
The appellant’s evidence comprised an affidavit sworn by him on 15 June 2000 together with oral testimony. The effect of his evidence was that he recalled nothing of the accident. In particular he was unable to say whether the traffic lights facing him as his vehicle entered the intersection were green or red.
The investigating police officer presented photographs and a diagram of the intersection. He gave evidence that in his view the appellant’s vehicle was travelling outbound on Bagot Road and then turned right to enter McMillan’s Road. The vehicle driven by the second respondent was travelling inbound on Bagot Road and the collision occurred in the intersection. Consistent with this view the photographs revealed that the impact of the collision was to the passenger side of the appellant’s vehicle. The officer did not observe any skid marks on the roadway.
The transcript of the hearing in the Court of Summary Jurisdiction (which was received pursuant to s 17(2) of the Act) revealed that the circumstances of the offending were put to the presiding Magistrate as follows:
“Sir, on Friday evening, 31 July, this year, the defendant Williams went to Shenannigans Pub in Darwin and consumed five mid-strength Carlton beers.
Later that night the defendant left the premises and walked to the bottle shop where he purchased a dozen Carlton Cold stubbies. The defendant then walked to the Esplanade and sat down with an unknown male person and consumed a further nine beers.
In the early hours of the morning of 1 August the defendant decided to go home, however, had insufficient funds for a taxi. The defendant then decided to drive his own vehicle, being a red Holden Jackaroo, home. The defendant started the vehicle and drove off.
About 2am the defendant was driving the vehicle inbound on Bagot Road. Upon arriving at the intersection of Bagot Road and McMillan’s Road a private hire car was entering the intersection and was negotiating a right hand turn from Bagot Road into McMillan’s Road. The defendant’s vehicle struck the private hire car directly in the centre of the passenger side.
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A passing vehicle stopped and assisted the defendant from his vehicle. Upon the defendant getting out of the vehicle he stated that he needed to relieve himself and ran off across Bagot Park.
… The police conducted a search of the area to locate the defendant and eventually located him hiding under a tree in Old McMillan’s Road behind the velodrome. When spoken to about the accident he stated that he was sleeping.
HIS WORSHIP: What, if he was sleeping when found or sleeping when driving?
MR PEACH: Sleeping when driving, sir.”
Counsel for the second respondent informed the court that those facts were admitted with “some exceptions which won’t affect the pleas”. The submission then made on behalf of the second respondent was that he recollected entering the intersection and he recollected the traffic control lights being in his favour. When the second respondent gave evidence he said that he in fact had been driving along McMillan’s Road towards Bagot Road and intended to turn right into Bagot Road. He said the traffic light was green and that the appellant’s vehicle appeared “from out of nowhere” and the collision occurred. That evidence was rejected by the presiding Magistrate as a “reconstruction” of the events.
The observation of counsel that there would be “exceptions” to the Crown facts followed, as it was, by the assertion by counsel that his instructions were that the traffic light facing the second respondent was green, and the further evidence of the second respondent that the light was in fact green, meant that the second respondent was placing in issue the suggestion that he had been asleep immediately before the collision. Whilst the evidence of the second respondent as to the direction of his travel was rejected by the presiding Magistrate, the issue of whether or not he was asleep at the time and whether or not he had made any admission to police of being asleep was not resolved. In those proceedings it was not necessary to do so. The learned Chief Justice was correct in determining that there was no evidence upon which a finding that the second respondent was asleep at the relevant time could be made.
In the Local Court it was held that the conduct of the second respondent “immediately prior to the collision … was such as to constitute the elements necessary to found a formal finding of guilt, on the balance of probabilities, of a dangerous act as defined in s 154(1) of the Criminal Code”. His Worship expressly concluded that he was unable to determine whether one or the other vehicle entered the intersection against the traffic lights. The basis of his finding that the offence was established was the intoxicated state of the second respondent at the time of the collision and a finding that he was asleep at the wheel immediately prior to the collision. It was implicit in the finding that the Court held that the injuries suffered by the appellant were as a result of that offence. The matter was appealed to the Supreme Court where, on 10 January 2002, the appeal was allowed.
In allowing the appeal the Supreme Court noted that the circumstances of the collision were largely unknown and that it could not be held “that the collision would not have occurred if the offender had been sober.” There was no evidence upon which it could be found that the driver was asleep at the relevant time. The learned Chief Justice observed:
“I consider that his Worship misdirected himself as to the elements of the offence constituted by s 154 of the Criminal Code. Furthermore, there was not before the Local Court evidence or other material upon which the court could rely in making the findings as to what the offender did or did not do causing the vehicle he was driving to collide with that being driven by the victim.”
The appellant submits that his Honour erred in so finding. It was the submission of the appellant that the fact that the second respondent drove his vehicle whilst he was heavily intoxicated constituted an act which caused serious danger, actual or potential, to the lives health or safety of the public and to any person using the road at the same time as the second respondent. It was submitted that the danger he created was one which would have been clearly foreseen by an ordinary person and he therefore committed an offence contrary to s 154(1) of the Criminal Code “[f]or every second, for every metre he drove in that condition, he committed an ongoing act causing serious danger, actual or potential.”
If, for the purposes of argument, it be accepted that the commission of the offence of committing a dangerous act was established, then it is necessary to determine whether the appellant was injured as a result of the commission of that offence. It is necessary to do so to establish that the appellant was a “victim” for the purposes of the Act. The submission of the appellant was that this requirement was satisfied simply by the second respondent being on the same road as the appellant, at the same intersection and at the same time, such that the collision occurred. It was submitted that the second respondent’s criminality was in driving notwithstanding his intoxication and, had he not driven because he was in that condition, the accident would not have occurred. This is to adopt an unqualified “but for” test of causation of a kind criticised in March v E & M H Stramare Pty Ltd & Anor (1990-1991) 171 CLR 506. In that case the High Court considered the issue of causation in relation to proceedings under the law of negligence. The majority observed that whilst the “but for” test may be a useful aid in some instances it is not a definitive test of causation. As the head note to the report records, the majority held that causation is a matter of fact to be considered by reference to common sense and experience and includes considerations of policy and the making of value judgements. I see no reason why those observations should not have equal application to proceedings under the Crimes (Victims Assistance) Act.
The difficulty for the appellant in the present appeal is that there is no evidence as to the cause of the collision. It is not known which vehicle faced the green light as it entered the intersection. It cannot be determined whether the appellant’s vehicle had been driven directly into the path of the vehicle driven by the second respondent with no warning and no opportunity to avoid the collision. Whether or not the second respondent committed an offence against s 154 of the Criminal Code is not a matter that need be determined in this appeal. Whilst the second respondent may have been committing offences, including (possibly) an offence against s 154, for an application for a victim’s assistance certificate to be successful it is necessary to establish that the commission of that offence resulted in the injury to the appellant. The fact that the second respondent was driving notwithstanding his intoxicated condition certainly led to his vehicle being at the intersection at the time the collision occurred. However, whilst his driving in that condition may have placed other road users at risk that some fault on his part would lead to an accident, it is not established that any such risk materialised.
The presence of the motor vehicle driven by the second respondent at the intersection does not mean that the collision was causally related to his intoxicated condition or to any aspect of his driving. The fact that the second respondent may have been engaged in unlawful conduct in driving in an intoxicated state is not enough if that conduct did not contribute to the collision. In this case the cause of the accident is not known. In the unusual circumstances of the matter there was no evidence upon which to base a finding that the second respondent did any act or made any omission that caused or contributed to the collision. It may be that the intoxicated state of the second respondent had no causative relationship to the collision at all. In the circumstances of this case it cannot be said that the injury suffered by the appellant was “as a result of” any identified offence.
In my view the appeal should be dismissed and the appellant ordered to pay the first respondent’s costs of and incidental to the appeal.
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