King v The Queen
[2011] HCATrans 327
[2011] HCATrans 327
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M129 of 2011
B e t w e e n -
TRENT KING
Appellant
and
THE QUEEN
Respondent
FRENCH CJ
HEYDON J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 6 DECEMBER 2011, AT 10.16 AM
Copyright in the High Court of Australia
MR M.J. CROUCHER, SC: May it please the Court, I appear with my learned friend, MS C.A. BOSTON, on behalf of the appellant. (instructed by Balmer & Associates)
MR G.J.C. SILBERT, SC: May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the Crown. (instructed by Office of Public Prosecutions Victoria)
FRENCH CJ: Yes, Mr Croucher.
MR CROUCHER: Your Honours, there is a notice of contention filed by the respondent and, subject to the Court’s direction, we thought perhaps we should deal with that first then move to what we say is the error in any event and then the question of the proviso.
FRENCH CJ: Yes, proceed.
MR CROUCHER: In our respectful submission, the Court of Appeal in De Montero was correct in concluding that when directing a jury on the elements of the offence of dangerous driving contrary to section 319 of the Crimes Act it must be made clear that the prosecution must prove, amongst other things, that the manner of driving created a considerable risk of serious injury or death to members of the public and, secondly, that the driving involved such a serious breach of the proper management or control of the vehicle on the roadway as to merit criminal punishment.
The reasons we say that is so are as follows. First, as the court made clear in De Montero the creation of the indictable offence of dangerous driving causing death was designed to fill a perceived gap between the offence of culpable driving causing death, on the one hand, and dangerous driving simpliciter, if you like, on the other. Secondly, the context is that the law in Victoria for some time, as the Court of Appeal laid down in R v De’Zilwa, is that culpable driving is regarded as a species of involuntary manslaughter and, indeed, the negligence head of culpable driving under section 318(2)(b) requires proof of the same level of negligence as that which is required for manslaughter by criminal negligence at common law.
Thirdly, since Victoria has four tiers of criminal liability specifically directed at driving offences, namely, culpable driving, dangerous driving causing death, dangerous driving simpliciter and careless driving, which are all different in content from the offences in other jurisdictions and which, of course, must sit together harmoniously within Victoria, authorities from other jurisdictions are, in our submission, of limited utility in determining the ambit of the offence of dangerous driving causing death in Victoria. Fourthly ‑ ‑ ‑
BELL J: Could I just raise one question with you concerning that submission? In a number of jurisdictions, the offence that in Victoria is characterised as culpable driving is not equated to manslaughter by criminal negligence or motor manslaughter, as it is sometimes described, so that in those jurisdictions one still has a gradation from manslaughter to culpable driving to dangerous driving and to the equivalent of careless driving. The matter I am taking up with you is that it may be partly nomenclature and not the number of tiers that differ between jurisdictions.
MR CROUCHER: Your Honour, with respect, I accept that, but nevertheless, one still must consider how this offence of dangerous driving causing death in this jurisdiction, Victoria, fits within the various heads that are available to this type of driving and while it is true to say that other jurisdictions do have sliding scales, if you like, of culpability attaching to offences concerning driving and causing death or serious injury, they are all different. None of them is exactly the same as this jurisdiction, and the court in De Montero accepted that it had a difficult task in plumbing the right line, if you like, as to where it all fits, and a very strong court, in my respectful submission, considered all of the authorities, including authorities from this Court in McBride and Jiminez and Coventry back many years ago, and many other cases from many other jurisdictions, and said this is where the line is drawn.
In relation to those cases – our learned friends rely on McBride and Jiminez as supporting their notice of contention but in fact we say that that reliance is in part, at least, misplaced. First, those decisions support the view that dangerous driving stands in sharp contrast to civil negligence, on the one hand, and instead must be potentially dangerous in a real sense. That is consistent with the test in De Montero, we say.
CRENNAN J: The other point, I suppose, is that a coupling of dangerous driving causing death or serious harm is another distinction that could be made.
MR CROUCHER: That is true and, indeed ‑ ‑ ‑
CRENNAN J: Because that then affects the precise direction.
MR CROUCHER: It could, although – the court considered that as well in De Montero and in fact a submission was made, it seems, but was withdrawn by the Crown about some sort of distinction on that basis, but again one must recognise the reality of the Victorian system. When I say there are four tiers there is also – there is some sort of sub or lateral tiers as well - beside culpable driving causing death is the offence of negligently causing serious injury.
They - those two offences - attract the same negligent manslaughter style direction for proof of liability. Similarly, you have below those two, dangerous driving causing death and dangerous driving causing serious injury. So, for symmetry, I suppose, if nothing else, the court was careful to put them on the same level of culpability but, of course, the difference is that the outcome, the result, death in one case, serious injury in the other, for dangerous driving causing death, dangerous driving causing serious injury and the same comparison in relation to culpable driving and negligently causing serious injury result in different penalties - firstly, though, subject to different penalties, 20 years imprisonment for culpable driving; 10 years imprisonment for negligence causing serious injury; dangerous driving causing death, 10 years; dangerous driving causing serious injury, 5 years.
FRENCH CJ: Is manslaughter still at the top of that heap?
MR CROUCHER: Yes. Manslaughter carries 20 years imprisonment.
FRENCH CJ: But you can be charged with manslaughter.
MR CROUCHER: You can, you can, but these days it almost never happens. Historically, the reason why culpable driving was brought in in the first place was because juries would not convict of manslaughter in driving cases. So culpable driving comes in as an offence.
CRENNAN J: It covers involuntary manslaughter.
MR CROUCHER: Indeed. Well, it does, yes. But I suppose it gets back to nomenclature before that was mentioned by Justice Bell. That was a decision taken by the legislature to ensure that people, when they do drive terribly badly and kill people, may be convicted of culpable driving.
BELL J: When culpable driving came in it had a maximum penalty, I think, of seven years.
MR CROUCHER: That is right.
BELL J: Successively amendments increased the maximum until the maximum for culpable driving is the same as the maximum for manslaughter. Is that right?
MR CROUCHER: That is true.
BELL J: At the point where that was reached, one can understand the decisions of the Victorian court holding that culpable driving was now to be equated with negligent manslaughter. Indeed, where the maximum penalties were now the same, one would query the exercise of a discretion to charge the general offence in circumstances where an offence of equal gravity applicable to the particular circumstances was selected by the Parliament.
MR CROUCHER: Indeed. I suppose, though, what theoretically might happen, your Honour, is that whilst almost every case of manslaughter that was ever charged prior to the existence of culpable driving was based on the negligent head of manslaughter, there might be cases where the Crown case is uncertain as to what actually happened. If a person used a motor car as a weapon, for example, then it might be a murder or it might be manslaughter by unlawful and dangerous act which, of course, is more consistent with what we usually understand to be manslaughter or murder as the case may be. So I suppose that room is allowed for them to do that sort of thing but that is, of course, a very rare case.
FRENCH CJ: It used to be the case in Western Australia, and Mr Silbert might recall this, I think, that people were charged with what was called motor vehicle manslaughter with an alternative verdict of dangerous driving causing death but the criteria seemed to be the same. It was just left to the jury to make an assessment as to seriousness and whether they wanted somebody to be punished at a higher level or a lower level.
MR CROUCHER: That is consistent with the Victorian experience, I suppose, in the sense that juries were reluctant to convict of manslaughter in driving cases.
BELL J: In any event, I do not understand there is an issue between the two of you respecting the approach taken in De’Zilwa that effectively the offence of culpable driving under the Crimes Act (Vic) is of equivalent seriousness to the degree of negligence to make the offence manslaughter.
MR CROUCHER: As I understand it that is right. The point I was starting to make before about reliance on McBride and the like is that we say it is consistent with the directions in De Montero in any event. Of course, De Montero takes it a step further by requiring a considerable risk of death or serious injury, but when one looks at those cases carefully and, in particular, both McBride and Jiminez were based on section 52A of the Crimes Act (NSW), that provision, whilst it uses similar language - as many of these dangerous driving provisions do - to the Victorian provision, as this Court made clear in Giorgianni, causation of death is actually not an element of the offence occasioning – it is an unusual provision but what it is is that in those days it was section 52A(3) - these days it is subsection (8) but the point is there was a defence available to an accused person to establish that there was not a link, if you like, between the driving and the death – or the bad driving and the death. So, to that extent, they are of limited utility as a comparator, in our submission, because dangerous driving causing death requires there to be the link between the dangerous driving and the death.
BELL J: But why should that affect the content of the notion of dangerous driving?
MR CROUCHER: Because there must be a death - it is a combination of factors, your Honour. I accept that it is not the only point, of course, but it is one consideration, in our submission, that is at least relevant to distinguishing those cases or limiting their utility because it is one thing to say that there is dangerous driving in the ether, if you like, and that is an offence, but it is another thing to say that dangerous driving must cause death or serious injury as the case may be. It is not surprising that the court, in those circumstances, would plumb for a clearer link and perhaps raise the threshold of culpability in order to have such an offence be made out.
Now, again, it links to the penalties. Your Honour Justice Bell before mentioned the successive increase in penalty with culpable driving from seven to 10 to 15 to 20. When De’Zilwa was decided it was at 20 and the court recognised this manslaughter equivalence, if you like. So, too, here, as the court recognised in De Montera, the maximum penalty for dangerous driving causing death has gone from five to 10 years and it sits on the same level as negligently causing serious injury at 10 years, which requires the manslaughter style proof, particularly when the two offences of culpable driving causing death and negligent causing serious injury are joined in one indictment, which commonly happens.
If there is a car accident when a person is killed and someone is seriously injured then usually those two counts follow. In the alternative, almost invariably, are dangerous driving causing death, alternative to culpable driving causing death, and dangerous driving causing serious injury as an alternative to negligently causing serious injury.
So it is to make it symmetrical, a smooth line, if you like, of culpability to distinguish between the high levels of negligence, on the one hand, and at the very low end, just mere civil negligence which is no crime at all. Then, of course, we have an offence of careless driving which, if you like, is the criminal form of civil negligence at the very bottom. Then you have dangerous driving simpliciter and then dangerous driving causing death fitting between all of these.
BELL J: It is a high degree of discrimination in the context of negligence involving the conduct of a motor vehicle to speak of a departure from a standard involving a real risk of harm to another human being and a departure from a standard involving a considerable risk of serious injury.
MR CROUCHER: Yes.
BELL J: It is a very fine discrimination, in a sense.
MR CROUCHER: Well, we say it is a significant discrimination and in any event as, in our submission, the Court of Appeal in De Montero made clear there are references in the authorities speaking of dangerous driving, if you like, simpliciter where it suggests at the level of risk and the risk of harm spoken about is something of that order anyway. It is often spoken of as serious injury.
BELL J: I suppose what I am taking up with you is one is really fastening more, surely, on the degree of departure from the proper conduct of the motor vehicle as opposed to whether the risk of causing harm to a human being is of serious injury as opposed to some other form of injury.
MR CROUCHER: Well, both. The court considered both. You will see in De Montero that their Honours had separate headings. They foreshadowed all this, after setting out the legislative history. Then they looked at all the authorities under the heading “Dangerous driving decisions” from paragraphs 36 and onwards. Then under the heading “Analysis” which begins at paragraph 55 on page 710, they deal with, on the one hand “degree of risk” and then on the other, at paragraph 63 and following “A risk of what”.
BELL J: Yes.
MR CROUCHER: So, in our respectful submission, quite properly they do not fall into the trap of simply combining all these ideas in the one thought, even though they might collapse in certain circumstances. You must have regard to the level of risk and the risk of what. The risk of what, of course, is death or serious injury, hence our earlier point about the need to be careful about too heavy a reliance on McBride and Jiminez when they were cases that did not involve a causative link, if you like.
FRENCH CJ: Is what you have been saying inconsistent with the respondent’s submission at 7.19 that:
dangerous driving is not a species of criminal negligence but is to be treated as determined by statute ‑ ‑ ‑
MR CROUCHER: Yes.
FRENCH CJ: So you have common ground on that?
MR CROUCHER: Yes.
FRENCH CJ: You do not need to call it criminal negligence for the purposes of your argument?
MR CROUCHER: No. But, in any event, the authorities that speak of dangerous driving make it clear that it is all shades of negligence. That is the point. It is at the very lowest level, which is no crime, it is civil negligence, then careless driving, which does not even carry a gaol term, is a criminalised form of negligence, a departure from the ordinary standard of care, if you like, then dangerous driving, then dangerous driving causing death, then culpable driving with its manslaughter equivalent.
FRENCH CJ: But it is not so much, if you like, the degree of carelessness of the driver. It is the nature of the driving and the risk it generates, that section, the word “dangerous” focuses on, is it not?
MR CROUCHER: But it goes to both though, in our submission, because it goes to – when you put it that way, your Honour the learned presiding judge, it goes to both. It goes to the degree of departure, if you like, and the degree of risk that has been, if you like – or which has resulted from the character of the driving, and one looks at the risk of what, death or serious injury.
KIEFEL J: The driving generates or creates the risk or danger, but from a jury’s perspective, is it not going to be easier for them to focus upon the quality of the driving, or the absence of quality of driving, rather than to try to appreciate the nature of the risk. I mean, the quality of the driving and what occurs in the circumstances will be hard and fast. At least there should be some physical requirements of the roadway and what is done. It makes it simpler. I know that the authorities too have to deal with different ways of trying to describe conclusions about driving, but in a jury assessment, is that not going to be the simpler way of approaching it?
MR CROUCHER: It may be simpler, your Honour, but ‑ ‑ ‑
KIEFEL J: You still have to have the risk or danger as the result from ‑ ‑ ‑
MR CROUCHER: Yes, for it all to fit properly within this Victorian regime.
KIEFEL J: But it is just that talking about a risk as the focus of the inquiry might tend to distract a jury from an assessment of the driving.
MR CROUCHER: It is only one of the factors, as you will see from the joint judgment, paragraph 81. There is a series of considerations, one of which is the risk. It is set out in our – I will go to the judgment itself. At paragraph 80, their Honours there deal with the point about merit in criminal punishment in the first, if you like, bullet point number 1, which we will come back to shortly, and the contrast there between mere lack of reasonable care rendering a person liable for civil damages and then, paragraph 2, perfectly consistently we say with McBride and Jiminez to speak of it as being:
2. . . . reality, and not just speculatively, potentially dangerous . . .
3. That the manner of driving created a considerable risk of serious injury or death . . .
4. That the risk so created significantly exceeded that which is ordinarily associated with being on or near a highway.
Then the fifth point was really prompted by an argument about the objective test. There was a complaint in this appeal that the court was wrong to say that there should be an objective test. With respect, we say, that is the essence of this sort of crime, whether it be culpable driving, dangerous driving causing death, dangerous driving simpliciter or, at the very bottom of the criminal scale, careless driving, they were all objective tests.
FRENCH CJ: Risks generated by a particular manner of driving is that which then informs the characterisation of the driving. So you drive through an intersection without pausing or slowing down for a give‑way sign and without looking right or left, it is not a big leap to say there is a risk associated with that and a danger associated with that kind of driving.
MR CROUCHER: No, I accept that, your Honour, but there might be situations where there is a high risk of crash but no risk of serious injury or death. It is something very low level, low speed, that sort of thing.
BELL J: Can we come back to the point at issue with McBride and its point 3 in paragraph 80 in De Montero. In McBride what was required was the breach to be so serious as to be in reality and not just speculatively potentially dangerous in the sense of a potential danger to other human beings present on or in the vicinity of the roadway as distinct from a danger of damage to property, but what McBride did not require was that the degree of specificity that one finds in 3 of serious injury or death. Now, the only basis for that departure from McBride that you identify, as I understand it, is that the Victorian provision criminalises dangerous driving causing death or serious injury.
MR CROUCHER: That is one factor, your Honour.
BELL J: What is the other factor?
MR CROUCHER: The authorities which actually are analysed under the heading “The degree of risk” in paragraph 55 and following, for example, use language that varies, but, for example, in paragraph 55 there is a reference to Justice Wells’ judgment in Pope v Hall where his Honour said:
. . . the degree of risk that something untoward will happen, and the degree of risk that if something untoward does happen, the damage caused will be more, rather than less serious.
So that is getting closer to that idea. Then in the next paragraph where their Honours summarise from various cases, mostly South Australian cases:
·“substantial possibility of injury to persons who might reasonably have been expected to come upon the road”;
·a “real, although a potential danger to traffic” –
well, that does not go so far –
·“one of substantial danger to the public” and the probability that, if injury had occurred, it would have been severe;
·the “potentiality of risk to the hypothetical public”;
·an “actual or potential danger”; and
·so serious a departure from the rules of the road as to “create a wholly unreasonable and unwarranted danger to the life or limb or both of other road users”.
It is fair to say, in our submission, that those authorities which have considered these issues over the years have themselves, without necessarily a requirement of a link between death or serious injury, as the case may be, and the driving, nevertheless spoken of the risk as going to that sort of thing, that sort of outcome, that sort of consequence, so it is hardly a leap, in my submission, to say in this particular jurisdiction in Victoria where you have this causative element of death or serious injury where it must fit harmoniously between culpable driving causing death, negligence causing serious injury on the same level and then below it dangerous driving and careless driving that you have such a requirement of a considerable risk of serious injury or death.
KIEFEL J: But describing it as a considerable risk takes it very much closer towards the understood definition of “culpable driving”, does it not?
MR CROUCHER: It is certainly, to use the word “considerable” is considerable.
KIEFEL J: That is the point Justice Bell made. I mean, really, it is becoming almost too fine. You have lost a factor which discriminates between the two.
MR CROUCHER: In our submission it is a factor of sufficient distinction.
KIEFEL J: To lawyers, maybe.
MR CROUCHER: Well, “high” is up here and “considerable” is below it, your Honour, in our submission.
CRENNAN J: Well, “considerable” and “significant” are synonyms, really, are they not, and distinguishable from “high”?
MR CROUCHER: Yes, indeed.
CRENNAN J: In that context, may I ask you turn to 543 of the appeal book and paragraph 22 of Justice Mandie’s decision which contains his conclusions. I think it is put against you that in dealing with the two points or the two complaints made about the directions there is no real error in this reasoning of the Court of Appeal and I just wanted to, I suppose, tax you about that a little if I may. At about point 6 of the page his Honour deals with what the trial judge did say and quotes her:
‘that the accused drove in a way that significantly increased the risk of harming others’ and ‘there does not have to be a high risk –
Knowing his Honour’s opinion his Honour considers that contains the distinctions which are made in De Montero, particularly in paragraph 81, and then at the bottom of the page his Honour recognises that the language of De Montero has not been used, which is something which was noted in paragraph 82 of De Montero, and forms the view that the substance was conveyed and then his Honour goes on to deal with the second aspect of the complaint made. What I wanted to ask you was, can you assist me in understanding how you identify error in that approach, having regard to compliance with a great deal of what was said in De Montero?
MR CROUCHER: Yes, two points. Firstly, in looking at the phrase in De Montero, “a considerable risk of death or serious injury” compared with a risk of harm or hurt there is two points at which there is a difference. Considerable equals significant but is more than a real risk, we say. Secondly, it is merely a risk of harm, according to the directions, whereas it is required to be a risk of death of death or serious injury. They are the points of difference on that score, and we say they are significant.
The next point which is perhaps convenient to move on to now, which is identified in the next paragraph or the end of the end of paragraph 22 and also in paragraph 23, is this issue about whether the driving merits criminal punishment. Dealing first with it from a notice of contention point of view, we simply rely on what the court itself in De Montero said about that, that it is so serious an offence, dangerous driving causing death, carrying 10 years imprisonment and describes very serious behaviour in and of itself that it warrants that description. Their Honours, in particular, at paragraph 32 in De Montero said this where they turned their minds squarely to it:
We should immediately state that driving which “merit(s) criminal punishment” is not a basis for distinction between culpable driving and dangerous driving. Driving which “merit(s) criminal punishment” is apposite to describe the offence of dangerous driving created by s 319 because of its inherent quality, its potential consequences for other road users –
so that is consequences coming in again –
and the maximum sentences for the two offences in s 319 which the legislature has fixed for such driving.
We say, add to that now, that penalty is higher now. It is now 10 years, which their Honours recognised.
FRENCH CJ: What is the content of that criterion for either offence? We are talking about an offence. If the offence is made out it merits criminal punishment.
MR CROUCHER: Indeed, and that is where, I should say, if I can skip ahead for a moment, your Honours, is that even if we are wrong on both scores about the requisite elements of dangerous driving causing death, that is to say, even if the threshold is not considerable risk of death or serious injury and even if there should not be a requirement that the driving merit criminal punishment in the same way that is required for culpable driving, we say the grave error in this case was the comparison that occurred, the contrast that occurred, on the one hand, saying that culpable driving causing death was something which must merit criminal punishment but not this offence, this alternative offence of dangerous driving.
FRENCH CJ: I think we need to look at what were the precise terms of the direction that the trial judge gave the jury on that point, which I think appear at the bottom of page 437, top of page 438 in volume 2:
the Crown does not have to satisfy you that the driving is deserving of criminal punishment.
MR CROUCHER: That is right. Yes, and we say that that is making a clear distinction, it is saying ‑ ‑ ‑
FRENCH CJ: The distinction is still there, I appreciate that. It is just it is not quite as stark as the way that you just put it forensically perhaps.
MR CROUCHER: All right, your Honour, but it is a very, very significant distinction and it waters down the alternative offence, we say, to vanishing point. This jury would have walked away or gone into the room thinking that it does not merit criminal punishment, an offence like this, or it only merits something comparatively modest when compared with culpable driving causing death, even though people have been killed, even though on the Crown hypothesis there has been a significant departure or a high departure from the standard of care required.
KIEFEL J: But your argument proceeds upon the basis that the jury are looking at the alternative verdict side by side. A critical difference between your approach and that of the respondent, I think, is that it is said that they should first consider the more serious offence and go through that process. Your argument loses some weight if that is the correct approach.
MR CROUCHER: We say in response to that point these things, your Honour. Firstly, her Honour’s directions invite the comparison. That is what she is doing. She is pointing out the differences between the elements of the two offences.
KIEFEL J: That might be just to highlight what are the elements of the two offences.
MR CROUCHER: Well, that is as may be, but it still has the same effect, in our respectful submission, that the jury would have understood that it does not merit criminal punishment whereas the other one does.
KIEFEL J: What do you say is the correct approach though, putting the directions to one side?
MR CROUCHER: We respectfully adopt what De Montero says, that you should direct in that way. What is more, this is another reason why – whether or not it is considered in isolation an appropriate thing to do because as the Chief Justice said a moment ago, well, they are crimes, they necessarily merit criminal punishment in one sense, but because the law for culpable driving is that that direction must be given and because almost invariably in cases where culpable driving is alleged the alternative of dangerous driving causing death is left to the jury either on the presentment or by virtue of the statutory alternative regime, it must be so that a direction of this type cannot be given or, put another way, even if it is not strictly required to give a direction that dangerous driving causing death too must require or merit criminal punishment, to set up this contrast is going to lead to error every time, in our respectful submission.
So that, really, it either should go from both, culpable driving causing death and dangerous driving causing death, or neither, at least when they are run together. The Court of Appeal in De’Zilwa, perhaps not so expressly but implicitly, recognised a similar situation when dealing with culpable driving causing death and negligently causing serious injury. Those two provisions, insofar as the negligence element is concerned, are worded differently, but because they are invariably – when there is both a victim suffering serious injury and a deceased arising out of the one motor vehicle accident, they are tried together and the behaviour is precisely the same, giving rise to death or serious injury as the case may be, that the same direction must be given. So too here we say, the same direction ought to be given, or neither, should be given in a case like this where dangerous driving causing death is left in the alternative.
So our principal submission is, of course, that there is nothing wrong with the directions prescribed by De Montero, both at the considerable risk level and at the requirement of merit and criminal punishment level, but, as I say, if we are wrong about either of those things – well, firstly, if we are right about those things, then clearly the directions were wrong and we then consider the question of proviso. Equally, even if they were not required but because they were given in this case or because the contrast was given in this case, there is still error. The jury was still deflected from proper consideration or at least there is a high risk thereof, and then one considers the proviso.
In that regard, we should go to the court’s reasons below, where Justice Crennan was a moment ago at paragraph 23, and 22. At the top of page 544 of the appeal book, after dealing with the risk issue, his Honour Justice Mandie says this:
So far as the other aspect of the ‘erroneous’ direction is concerned, I think that it is most unlikely that the jury would have considered that the lesser offence involved an element that it was ‘not deserving of criminal punishment’. It must have been evident to the jury that the alternate offence was an offence and therefore necessarily subject to criminal punishment. Indeed, the judge made clear that, in contrast to dangerous driving, ‘genuine accidents happen for which no one will be criminally liable’ and the jury would have to have understood from that that dangerous driving was an offence for which persons were criminally liable.
That is not the point, in our respectful submission. It is not a question of whether it is a crime or not. It is just that one is said to merit criminal punishment, so serious that it merits criminal punishment – the other one, no such requirement. So it reduces the seriousness in a case where, going back to your Honour the Chief Justice’s example before in Western Australia, where juries are given a choice, even on very similar standards of directions as to where they will go. Here, this jury, in our respectful submission, would have been totally disinterested in the alternative.
FRENCH CJ: The formula, I think, that has to be invoked in Western Australia was that you had to show it was a crime against a State, which seemed to equate it to some form of serious breach.
MR CROUCHER: I should digress for a moment ‑ ‑ ‑
CRENNAN J: If you look at footnote 110 in De Montero, which is on page 716 and relates to point 1 of the guideline direction, the distinction that is being made is exactly the same distinction that Justice Mandie recognised was made in the trial judge’s directions.
MR CROUCHER: Sorry, which page, your Honour?
CRENNAN J: Sorry, De Montero. Paragraph 80 has the guideline direction. Point number 1 has a footnote 110. The point I was seeking to make is that the distinction which the Court of Appeal is making between driving which merits criminal punishment and driving for which a person would not be criminally liable is the same point which his Honour Justice Mandie was making in the passage you just took us to at the top of page 544, when his Honour Justice Mandie was considering not only the comment about “not deserving of criminal punishment”, but also that the trial judge had made a distinction between dangerous driving and genuine accidents which would not attract criminal liability.
MR CROUCHER: That is true, but that is only part of the question though, your Honour, because wherever the line is drawn for dangerous driving causing death, whether it be something less than considerable risk of serious injury or death, or precisely that, nevertheless it is obviously – even on a very charitable to the Crown reading of McBride and those cases – it is still well above what is required to make it an acquittal, if I can put it in a negative way. The shades are there is no crime at all, maybe civil negligence – civil negligence, careless driving amounting to a crime, dangerous driving, dangerous driving causing death, and culpable driving.
So, in our respectful submission, that is not an answer to the point that we make. Could I read on though with his Honour’s reasons because he goes on at paragraph 23 at page 544 and says:
Understood in this way, as I think that the jury must have understood them, the directions concerning dangerous driving causing death would not have affected the jury’s consideration of the applicant’s guilt or innocence in relation to the offence of culpable driving causing death. Furthermore, and in any event, the way in which the judge directed the jury made it clear that they should first consider the offence of culpable driving and only if they were not satisfied beyond reasonable doubt in relation to those charges should they turn to consider the alternate offence.
This gets back to the point your Honour Justice Kiefel was making before –
It is true that it should not be assumed that a jury proceeds in a mechanistic fashion –
and there his Honour cites Gilbert at paragraph [16] which is from the joint judgment of Chief Justice Gleeson and Justice Gummow –
in the course of its deliberations but I consider it to be highly improbable in the present case that the jury would not have first considered the applicant’s guilt or innocence of the actual charges in the presentment in accordance with the directions of law given to them, before giving consideration to the alternate offence. In any event, I do not consider that they would have been deflected from a proper consideration of the more serious charges by the directions given in relation to the alternate offence.
In our respectful submission, that is to misunderstand Gilbert. The point, as we understand it, of the reasoning in Gilbert and the cases that have followed it ever since is that, yes, you are not to assume a mechanistic approach to questions of fact, or verdict for that matter, on the part of a jury because the questions they are asked to consider are affected or do affect their findings of fact – or may, at least, affect their findings of fact ‑ ‑ ‑
FRENCH CJ: That is an observation with a fairly high level of generality. I mean, in Gilbert the alternative verdict was not left to the jury.
MR CROUCHER: Yes, but so too in Jackson’s Case on which the Court relied in – or at least Chief Justice Gleeson and Justice Gummow relied in their joint judgment – was a case where manslaughter was left but left in a limited way. So too this Court more recently in Wynne where manslaughter was left, but one of the paths to manslaughter was not left open. This is the equivalent. This is to say to a jury, we say, that it does not merit criminal punishment – I know I am putting it with the qualification that your Honour the Chief Justice put before, if I might use that shorthand – we say is an equivalent type of error. Once error is shown, as Gilbert makes clear, you have a wrong decision on a question of law within the second limb of section 568(1) of the Crimes Act.
The next question is the proviso; those are the steps. If, as the law is in this case, the Crown cannot persuade the Court to rely on the proviso, then the appeal must be allowed, and the steps are these, in our respectful submission. First, if we are right about De Montero and the first limb of the test, if you like, the considerable risk of death or serious injury, well, the directions place the threshold of liability far too low. We say that to create a real risk of harm is substantially less dangerous or blameworthy than it is to create a considerable risk of death or serious injury.
Contrary to Justice Mandie’s reasoning at paragraph 22 which we have already been through, we say that repeated references to “harm” and “hurt” and the express contrasting of those terms with death or serious injury in the context of culpable driving compel the view that the jury might not have understood and probably did not understand that the subject of the risk was death or serious injury rather harm or hurt, but, secondly, even if we are wrong about that because the notice of contention succeeds or for other reasons wrong, to direct that unlike culpable driving in the case of dangerous driving causing death the driving need not merit criminal punishment we say was apt to cause the jury to think that the alternative was a much less serious offence, something akin to or approaching civil negligence and something for which the appellant would not be adequately punished.
The other thing, which is a departure from what we have written here, that it is to be noted that of course these counts are not on the presentment, they were only raised with the jury late in the piece in final address and then in her Honour’s charge, so they do not see the count there. Further, we say that contrary to the Court of Appeal’s reasoning at paragraphs 22 and 23, there is an unacceptable risk that the erroneous direction, particularly the direction on merit in criminal punishment, deflected the jury from proper consideration of the dangerous driving causing death alternative as well as the possibility of an outright acquittal.
His Honour’s reason focus on, well, it would not have affected the way they considered dangerous driving causing death, but again, as the joint judgment and the judgment of Justice Callinan in Gilbert made clear, that is not the way to reason it. One must accept, pursuant to those authorities, that when the jury are given erroneous directions, if you like, about matters of this matter it can affect the way in which they reason. In fact, I should take your Honours to those passages in Gilbert. A very similar argument was made in Gilbert itself and has been made on other occasions to the effect that, well, because there was a conviction on the principal offence and because there were proper directions in that offence, one must assume that the jury simply faithfully applied the directions and there is nothing wrong with the conviction. At paragraph 13, page 420 of the reasons of Chief Justice Gleeson and Justice Gummow their Honours say this:
The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision‑making is unaffected by matters of possible prejudice.
Then their Honours speak of Mraz and, in particular they ultimately extract in paragraph 14 this passage from Mraz:
“It is, of course, quite possible to say that the same conclusions on these issues of fact must have led the jury to find the appellant guilty of murder if they had been properly instructed. But it would be ignoring the realities of the matter to assume that if they had been required to consider whether they should convict the appellant of murder or acquit him they would have reached the same conclusions.”
Then at 15:
Fullagar J said:
“A jury which would hesitate to convict of murder may be only too glad to take a middle course which is offered to them.”
These statements are inconsistent with the notion that an appellate court must assume, on the part of a jury, a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences. Indeed, juries are ordinarily asked to return a general verdict. They make their findings of fact in the context of instructions as to the consequences of such findings, and for the purpose of returning a verdict which expresses those consequences.
Then, their Honours in paragraph 16 refer to what was said in Mraz about ignoring contemporary realities. Of course, that was the death penalty that was in issue there. They go on ‑ ‑ ‑
HEYDON J: I do not quite understand that. The death penalty was not enforced in New South Wales in 1955, I believe. Certainly no one had ever been hanged for many years and I think it was abolished before that.
BELL J: My recollection is that it was 1955 that it was abolished, was it not?
HEYDON J: Historical judgment.
MR CROUCHER: I will let your Honours sort that out. It goes on and their Honours say, after referring to that:
That was why, tactically, defence counsel might prefer to conduct a homicide case on a “murder‑or‑nothing” basis. The death penalty has gone, but there are other, perhaps equally influential, realities. This is an age of concern for the victims of violent crime, and their relatives. To adapt the words of Fullagar J, a jury may hesitate to acquit, and may be glad to take a middle course which is offered to them.
So too, here. This is an age of concern about the victims of car accidents, the awful consequences that can follow. People die. People who are left behind, their lives are ruined. We have saturation advertising about the dangers of driving. It is the same type of reasoning. It is equally applicable, in our submission, to a case such as the present.
Then their Honours go on to deal with Jackson’s Case from Canada where, as I say, that is an example of where manslaughter was left but not adequately. As I said before, in Nguyen in this Court, R v Nguyen only, I think, last year, this Court allowed an appeal – well, actually allowed appeal by both sides. The Crown was successful because an acquittal was set aside but a retrial was also awarded on the basis that the judge had failed properly to leave manslaughter in the circumstances. Their Honours go on and then say at paragraph 19:
McLachlin J said that, in such circumstances, the test for the application of the proviso is whether it is clear that a jury, properly instructed, would necessarily have returned a verdict of murder.
We agree that such a question must be asked in order to determine whether there has been a miscarriage of justice.
Then their Honours go on and deal with the particular facts of that case. In this particular case, it is important, we say, that the comparison that the trial judge invited between one offence meriting criminal punishment or needing to merit criminal punishment and the other one need not, was an erroneous basis for comparison and so heavily diluted the directions as to – on dangerous driving causing death as to render it a meaningless alternative in the eyes of the jury.
That went to, if you like, the heart of the appellant’s defence. He disputed that he drove culpably or dangerously, whatever the test might be. This, we say, was a relatively weak case of culpable driving, a viable and more apt case of dangerous driving causing death. This was a case where there was no speeding. He is driving within the speed limit. No alcohol. No bad lead‑up driving. The passenger who survived the accident said that he had known him for a long time and had never seen him drive badly and he was driving well on this occasion.
This was a black spot intersection which, after the accident, was repaired. Mr Grayson, the truck driver, who had driven there before did not know that the appellant was facing a give‑way sign. He accepted, as did many of the other witnesses, apart from a couple of police witnesses, that the intersection was poorly lit, dark. The police accepted that after the intersection had been fixed there was no more accidents. There had been something like, I think, it was five or seven accidents, very serious accidents in the years leading up to this crash.
BELL J: I think there was some issue at trial about the fact that the status of the intersection as a black spot was not proved, but am I right in thinking that one of the investigating police did acknowledge there had been another fatal accident at that intersection prior to this one?
MR CROUCHER: Yes.
BELL J: So that was where the evidence stood.
MR CROUCHER: Yes, that is right. And then on the plea, as it happened, the evidence was augmented on that point, which is unfortunate but there it is. But, in any event, there was no dispute that it was a difficult intersection, if I can put it that way. De’Zilwa, your Honours might have seen the facts in De’Zilwa where a woman went through an intersection and crashed and killed someone. The Court of Appeal in that case directed an acquittal. It was not dissimilar – I should say directed acquittal on discretionary grounds. They said there was a case of culpable driving but because the appellant in that case had served a substantial proportion of her sentence or all of it, I think, and because of some of the weaknesses in the case, they considered a discretionary acquittal should be entered.
De Montero itself was a case where the court considered that if it were wrong in refusing the application for leave to appeal against conviction they would have directed an acquittal because of a combination of the time that the appellant had served in custody and the weakness of the case.
Now, to go back a step, in the days of De’Zilwa there was no alternative offence of dangerous driving causing death, so perhaps they might have considered a substituted verdict, I do not know. But in De Montero that, we know, was in the days when dangerous driving causing death was an alternative but the court still, as I say, would have directed an acquittal had the point succeeded there.
CRENNAN J: Do you accept if the submission about the weakness of the case is not accepted that the appropriate course is a retrial?
MR CROUCHER: No, for this reason, your Honour. One relevant consideration over and above the strength of the case is, or several are, in fact, delay – this is all several years ago now, six or seven years ago. Secondly, the appellant is due, on our calculations, for parole ‑ ‑ ‑
CRENNAN J: March.
MR CROUCHER: ‑ ‑ ‑ in March, so he has served a very large proportion of his sentence already. Had he been convicted of the alternative of dangerous driving causing death, there is no doubt but that the sentence that would have been imposed would be much less than the time he has already served in custody.
BELL J: Would the submissions that you have just been putting be consistent, in the event you were successful in your challenge, on substituting a verdict for the lesser offence?
MR CROUCHER: Yes. It is section 569(2), I think, your Honour, that allows a court to do that ‑ ‑ ‑
HEYDON J: And then what?
MR CROUCHER: Well, it is a matter for your Honours, I suppose. You could deal with it here, but you might prefer to remit it to the Court of Appeal to deal with the sentencing issue that would flow therefrom, because the order under section 569(2) would be allow the appeal, acquit effectively, or – I cannot remember the terms of the section – you quash the conviction, and you substitute the alternative and then sentence accordingly. Let me just go into the section -this is section 569(2), which of course applies to this case, even though there is now a new regime in place –
Where an appellant has been convicted of an offence and the jury could on the indictment or charge have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal –
or the High Court sitting at its shoes, I suppose –
that the jury must have been satisfied of facts which proved him guilty of that other offence the Court may instead of allowing or dismissing the appeal substitute for the verdict found by the jury a verdict of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence not being a sentence of greater severity.
So even though it speaks of doing all of those things, it would be open to this Court to substitute a conviction for dangerous driving causing death on each account, but remit the matter for sentencing in the Court of Appeal.
FRENCH CJ: Now, when was – this is 569(2) of the Crimes Act as at what date?
MR CROUCHER: As at up until 1 January 2010, I think it was, but the transitional provisions provide that these parts of the Crimes Act still apply to appeals in respect of sentences that were passed prior to that date, or the commencement of the Criminal Procedure Act.
FRENCH CJ: All right.
MR CROUCHER: That is why we are dealing with section 568(1) as the principal section in this appeal, rather than the new section under the Criminal Procedure Act, and so too section 569(2) would be applicable. One thing I did not deal with orally, but I am happy to rely on what we have written about it, your Honours, is the respondent’s point that the test in De Montero, and this is paragraph 7 of our oral submission outline, which is dealt with in paragraph 8 of our reply ‑ ‑ ‑
BELL J: What paragraph of your reply?
MR CROUCHER: It is paragraph 8 of our reply where we say that the submission that – and this is to backtrack, of course, your Honours – the submission by the respondent that the test in De Montero equates with manslaughter, we say, is wrong for the reasons we have put there. If I can put it very shortly, your Honours, plainly it is not the same as the test for negligent manslaughter which is the same as that which is required for culpable driving. It might be, depending on your Honours’ view, the difference between considerable risk and high risk, but we say there is a substantial difference between those two things.
Secondly, insofar as unlawful and dangerous act manslaughter is concerned, well as I say, that is never prosecuted anyway for motor manslaughter, but more importantly, whilst the test as laid down by the majority of this Court in Wilson is, amongst other things, that there must be an appreciable risk of serious injury and that a reasonable person in the position would have realised such a risk in doing what he did, the act must also be unlawful – almost invariably some form of assault, usually a serious assault which puts it at a different category altogether. So, unless the Court has any further questions of us, those are our submissions.
FRENCH CJ: Yes, thank you, Mr Croucher. Yes, Mr Silbert.
MR SILBERT: If the Court pleases. Commencing with the final three points my friend finished off with before coming back to the substantive issues, my friend said it was a weak case of culpable driving. He left out every factor except the cannabis which would clearly have had an effect on a jury determining whether this was culpable driving or not. There is no need to traverse the facts but he selectively left that out as an item of some significance.
No one is attacking the direction in De’Zilwa in this appeal, although it clearly deviates from the statutory provision. I think it has to be said that both 318(2)(b) and 319 are statutory provisions that have to be interpreted. We are not interpreting the common law. The difficulty with merit in criminal punishment is that because 318 – the culpable driving provision – is premised on criminal negligence, criminal negligence under the common law seems to rope in the question of merit in criminal punishment. One only has to look at, just by way of example, Nydam v The Queen [1977] VR 430, which is on the list of authorities, and at 445 – and I just do this by way of example – the Full Court says:
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 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.
[S1]
Now, the common law ‑ ‑ ‑
HEYDON J: Do you say that is, as it were, an ingredient of the crime, do you?
MR SILBERT: I beg your pardon, your Honour?
HEYDON J: Do you submit that that is an ingredient or integer of the crime, or is it some descriptive flourish in the course of analysing?
MR SILBERT: Well, I would be happy to go primarily with the descriptive flourish, but if the Court said that it was more than that then whether it becomes an element or not traditionally where you get criminal negligence referred to you get merit in criminal punishment. Now, I suppose that becomes a distinction from civil negligence to enable the jury to determine that the negligence is such a gross falling short of the standard of the reasonable man that it merits criminal punishment, and that is the way that criminal negligence appears to have been traditionally explained to a jury.
BELL J: It tends to assume that juries are familiar with the notion of negligence in terms of a suit for damages.
MR SILBERT: It does, your Honour, and going back to Justice Heydon’s point whether it is effectively an element or whether it is a descriptive flourish in elaboration of what criminal negligence is I am not sure has ever been decisively determined. But traditionally where you see criminal negligence you see merit in criminal punishment. Now, the complaint here is that the merit in criminal punishment has been roped by the Court of Appeal into section 319 which is a statutory provision which was governed perfectly satisfactorily by McBride and Jiminez ‑ ‑ ‑
BELL J: The difficulty that is created in a context in which one gives a direction with respect to the culpable driving count that includes the traditional reference to merit in criminal punishment, and then deals with the alternative count by saying this is not something the Crown must establish in a way which it is set against you rather points to the jury that this is a trivial crime.
MR SILBERT: Well, yes, except, your Honour, the judge clearly in the course of her directions – her charge to the jury at page 437 of appeal book No 2 pointed out at line 19:
There are two important differences between the offence of culpable driving causing death, and dangerous driving causing death that reflect the fact that the offence of culpable driving causing death is a more serious offence. First, the Crown must prove beyond reasonable doubt that the accused drove in a way that significantly increased the risk of harming others. There does not have to be a high risk of death or serious injury. That is only a requirement for culpable driving causing death by gross negligence. And secondly, unlike the offence of culpable driving causing death by gross negligence, in relation to the offence of dangerous driving causing death the Crown does not have to satisfy you that the driving is deserving of criminal punishment.
Now, whether that is a satisfactory way of drawing the distinction may raise for consideration Justice Heydon’s point as to whether merit in criminal punishment is effectively an element of culpable driving or – criminal negligence or whether it is a flourish intended to explicate the meaning of criminal negligence. But I accept what your Honour says. Her Honour did her best, and her Honour – I do not think there is any doubt her Honour charged in accordance with the law as it existed at the date of the charge. So the question is really whether De Montero causes havoc to this dichotomy between culpable driving and dangerous driving causing death or not.
BELL J: At the date of the charge, was it conventional to direct, respecting the alternative count, that it was not necessary to establish that the driving was deserving of criminal punishment?
MR SILBERT: Yes, it was. Yes, it was, your Honour.
BELL J: Such a direction was given in Towle I noted, but I did not know whether that was ‑ ‑ ‑
MR SILBERT: Yes, it was commonly done in Victoria where the two offences were extant.
CRENNAN J: It is clear, I think, from a case that follows De Montero which, I think, you might have mentioned Guthridge v The Queen which is reported at (2010) 27 VR 452.
MR SILBERT: That was a case which special leave was sought by the Crown to try and clear up this confusion and it was said to be not a suitable vehicle. So, in a way, we have got in on the coat tails of my friend in relation to this particular appeal by way of the notice of contention. Your Honour is perfectly right, that was raised for consideration there. So the question of meriting criminal punishment is clearly a major distinction between these two methods of charging and, in the Crown’s submission, there is simply no warrant for that meriting criminal punishment to come into the elements of dangerous driving causing death.
BELL J: Or perhaps culpable driving?
MR SILBERT: I am happy to go along with that, your Honour. It was decided that we would leave De’Zilwa alone and I think we had discussions with our friends and we thought we would not trouble the Court beyond section 319.
FRENCH CJ: The problem with leaving De’Zilwa and culpable driving alone is that if there be a vice, the vice is in the discrimination that arises between the two sentences and the confusion that that might generate.
MR SILBERT: Absolutely, your Honour, and if, as Justice Bell says, it is unwarranted in section 318(2)(b), then this may well be the vehicle to clarify it. So meriting criminal punishment, as I say, is the first matter of discrimination that arises. The second is, and it has been referred to by Justice Kiefel, the element of culpable driving under De’Zilwa, such high risk of death or serious injury would follow and the element imported by De Montero into dangerous driving causing death, considerable risk of serious injury or death would follow now. Again, it is submitted, and I think we have set that out in our summary of oral argument, that it is a distinction that perhaps lawyers would have trouble grappling with let alone juries ‑ ‑ ‑
FRENCH CJ: Just before you go to that, before we leave the other point, I suppose, in a sense, if there is a vice in the discrimination, it is, as it were, easier to dispose of that vice if, to adopt Justice Heydon’s characterisation, the words “deserving a criminal punishment” are a flourish rather than an element of the offence of culpable driving. In other words, one would say then, however appropriate it might have been in a particular situation to use that form of words, it is inappropriate where it gives rise to a distinction between – or it may give rise to a false distinction being drawn by a jury between culpable and dangerous driving. In other words, it simply becomes an inappropriate direction.
MR SILBERT: Absolutely, and inappropriate in the elements of culpable driving and inappropriate in the dangerous driving causing death.
FRENCH CJ: One does not have to characterise it as an element.
MR SILBERT: No.
FRENCH CJ: Let us assume it is not an element, let us assume it is just a way of authorising the jury to think about what culpable driving means.
MR SILBERT: Yes. Then it certainly disposes of one area of confusion between the two offences. Given that the focus of 318(2)(b) is on a negligence based offence in contradistinction to 319 which is on mode and character or quality of driving, the foci of each offence are on effectively different criteria; culpable driving, looking at gross negligence as a touchstone and 319 looking at speed and manner dangerous. Those four words seem to have had a long history of interpretation from McBride on and have been applied in a number of statutes.
FRENCH CJ: So you might succeed in part of your notice of contention, but nevertheless, consistently of that, an error might be found in the way the direction was given?
MR SILBERT: That is certainly possible, your Honour, yes.
FRENCH CJ: It does not talk about the proviso, of course.
MR SILBERT: Yes, it is one permutation of an outcome.
BELL J: Can I just take up one aspect with you, Mr Crown, of your suggestion that there is a distinction between the 319 offence of dangerous driving and the offence of culpable driving where that offence involves gross negligence.
MR SILBERT: Yes, your Honour.
BELL J: You seem to contend that Jiminez following McBride is authority for the view that dangerous driving does not, as it were, involve any notion of negligence.
MR SILBERT: No, I do not make that suggestion.
BELL J: No, that is what I wanted to just – it seemed to me that in Jiminez the joint reasons make particular reference to the judgment of the New South Wales Court of Criminal Appeal in Buttsworth where, if I can encapsulate what was put in the leading judgment in that case, one is looking at a series of graded departures from the standard of care. The distinction is, unlike the civil law of negligence, one is not looking at a fixed standard. One has the gross standard for manslaughter, as they were referring to in New South Wales, now culpable driving here, and a lesser standard but still well above the civil standard for dangerous driving. Does the Crown accept that?
MR SILBERT: Yes, we accept that, your Honour, and we accept that to the extent that 319 covers negligence, for a shorthand expression, that is also encapsulated within culpable driving to a wider extent. So it occupies a smaller area of culpable driving but nevertheless there is an overlap and a coincidence of quality of driving in relation to that.
BELL J: So coming back to De Montero and paragraph 80 and point 3, I understand the Crown takes issue with the particularity of the direction in terms of considerable risk of serious injury or death.
MR SILBERT: Yes, your Honour.
BELL J: But if one reads other parts of De Montero, what emerges is the requirement, in a case where culpable driving is charged and where the statutory alternative is left, for the trial judge to make very clear the distinction between the two in a way that preserves, as it were, that the dangerous driving count involves some serious departure from the proper conduct of a vehicle.
MR SILBERT: Absolutely, yes.
BELL J: The Crown maintains that that was done in this case, notwithstanding the reference to the absence of any necessity to establish that the driving was deserving of criminal punishment?
MR SILBERT: Yes, we do, your Honour. I am not sure I can take that response any further. I am happy to take any questions from your Honours, but I think that probably encapsulates what I had in my summary of written argument. It is submitted that the jury were clearly directed by her Honour to deal with culpable driving and then dangerous driving sequentially and that they simply never got to dangerous driving on the basis of her Honour’s directions.
KIEFEL J: You say that that direction stands correct and Gilbert does not touch upon this area?
MR SILBERT: Yes, your Honour, I do, because in Gilbert manslaughter was not left here. This is not the case where the defence went to the jury urging them to bring in a verdict of dangerous driving causing death. It was barely adverted to and it was really, I think, forensically guilty or not guilty. It was certainly adverted to, but there was no concentration on it and it was not a case where the defence sought a verdict of dangerous driving causing death.
BELL J: I must say, Mr Crown, if one goes to appeal book 298 and 299, I would have thought that counsel was fairly clearly flagging the alternative as very much open.
MR SILBERT: From 298, line 6, it was certainly flagged, your Honour, in the course of two pages, yes. Yes, it was raised. I said it was raised. It was not the traditional case where counsel goes to the jury saying, “Bring in a verdict of manslaughter. We are not guilty of murder.” It was raised as an alternative. It was raised, I think, by the trial judge by way of preliminary discussion prior to a charge. In one sense it was more or less raised because it had to be raised because the trial judge indicated that it was a statutory alternative and she would be leading it and there was almost a direction that at least counsel touch upon it and counsel did touch upon it. If the Court pleases, those are our submissions.
FRENCH CJ: Yes, thank you, Mr Silbert. Yes, Mr Croucher.
MR CROUCHER: Your Honours, just a couple of matters in reply. Firstly, in respect of the question of cannabis use, we say these things. We still maintain that it was a very weak case of culpable driving. There was no verdict on the cannabis alternative. Your Honours will see that when you read the evidence of Dr Wells in particular about the cannabis use it was very, very weak in the end. Scientifically speaking, Dr Wells contrasted the evidence of cannabis use and its potential effect on driving skills with the learning about alcohol, clear learning about how high levels of alcohol unambiguously impair driving skills to a certainly high degree. The test in the alternative head of section 318, as I say, which the jury did not find him guilty on, – this is 318(2)(c) – he must be:
whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle ‑
When you read Dr Wells’ evidence, it did not say that. All it could say was there would be impairment, and he put it in a rather negative way. He said, “I do not know of any studies which” – and this is my paraphrasing now – “any studies that would say that he would be okay”, but he could not put it the other way and say that he would be impaired to that very high degree as to be incapable. So it was pretty weak evidence.
KIEFEL J: Did the evidence show that he would have taken cannabis in a period up to three hours before the accident?
MR CROUCHER: That is right. A lot of the argument from both Dr Odell, who gave the evidence principally about the time of likely consumption, and in part from Dr Wells was on that issue. So, yes, plenty of evidence that it must have occurred, scientifically speaking, within three hours. But the evidence on its affecting driving skills to the point required by section 318(2)(c) was very weak. That is the simple point I make there. The second point in reply is that if your Honours were to excise from the directions on culpable driving causing death, the requirement that the driving merit criminal punishment, you would be doing the same thing to the test for negligent manslaughter because that is from where it comes.
FRENCH CJ: It might be that it would not be necessary to say more, on the line of argument that you are running, than that it is inappropriate to give that direction in a case where you also have the statutory alternative, which, of course, in the end would be most cases.
MR CROUCHER: We respectfully agree, your Honour. That is the sensible solution.
FRENCH CJ: It does not go to the question of whether it is appropriate if it is a stand alone ‑ ‑ ‑
MR CROUCHER: No. I can tell your Honours, for what it is worth, that I understand that proposals for law reform would drop the reference to meriting criminal punishment, so there you go.
FRENCH CJ: There is always that big slip between the cup and lip in proposals for law reform, as we know.
MR CROUCHER: Yes. The third point in reply is this. Our learned friends say that the directions routinely given did not include references to merit in criminal punishment in cases of dangerous driving causing death. You will see in De Montero itself at paragraph 76 on page 715 of the judgment there are references there in the last sentence to this. It says:
And in the Victorian Supreme Court, Cummins J in R v Towle –
which has been mentioned today and which has been referred to in the Crown’s submissions –
Kaye J in R v Scholl and Weinberg JA in R v Kalwig have each applied the standard of the ordinary or reasonable person driving in the same circumstances as the accused.
Your Honours, we will provide copies of this but in Justice Kaye’s judgment in Scholl which you will see from the footnote is reported in (2009) 53 MVR 1, in his Honour’s ruling which was on how to direct a jury on dangerous driving causing death at paragraph 4 his Honour says this:
Before turning to the alternative charge under s 319, I should observe that I intend to charge the jury on the eleven counts of culpable driving in accordance with the formula described by Charles JA in R v De’Zilwa, namely, that in order to convict the accused of those counts, the jury must be satisfied beyond reasonable doubt that his driving involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, and which involved such a high risk that death or serious injury would follow, that the driving, causing death, merited criminal punishment.
He cites some other cases as well. He then says:
The same formula, with appropriate adaptation, has been held to apply to the offence of negligently causing serious injury contrary to s 24 of the Crimes Act, which is the subject of a further ten counts in this case.
He then goes on and at the end of his ruling at paragraph 19 sets out what he had proposed to say and it is fair to say that his Honour does not refer to the merits criminal punishment aspect there. However, also in that same paragraph of De Montero, as I say, there is a reference to Justice Weinberg’s judgment in Kalwig and Kalwig is, as you can see from the footnote, 107, is [2009] VSC 373. At paragraph 22 of Justice Weinberg’s sentence in that case his Honour says this:
The jury were asked to consider whether an ordinary person, in the same circumstances as you found yourself on the morning in question, would have realised that the manner of your driving gave rise to a risk of death or serious injury to other road users. They were also told that they could not convict you unless satisfied that your driving merited criminal punishment.
So, his Honour in the Supreme Court was giving that direction. It seems that some were doing it and some were not, your Honour. Justice Weinberg, of course formed part of the court in De Montero itself.
Finally, your Honours, the point about counsel’s approach at trial, well, at page 298 of the appeal book it is plain that counsel was inviting the possibility of the alternative. He was in that difficult position that counsel at trial often are in saying, well, if you are going ‑ ‑ ‑
FRENCH CJ: He is going for an acquittal.
MR CROUCHER: That is right. He is going for acquittal, but if you are against me, do not go that far. Please go halfway, thanks very much. Of
course, he was inviting that possibility, we say, in circumstances where the judge later told the jury, erroneously, that the threshold for risk was lower than it should be. If we are wrong about that, her Honour nevertheless was inviting the jury to apply a test which erroneously contrasted meriting criminal punishment on the case of culpable driving but not necessarily for the case of dangerous driving causing death. If the Court has any further questions of us, those are our submissions.
FRENCH CJ: Yes, thank you, Mr Croucher. The Court will reserve its decision. The Court adjourns until 10.15 am tomorrow.
AT 11.49 AM THE MATTER WAS ADJOURNED
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