Monaghan v Calatzis
[2021] ACTSC 4
•1 February 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Monaghan v Calatzis |
Citation: | [2021] ACTSC 4 |
Hearing Date: | 23 November 2020 |
DecisionDate: | 1 February 2021 |
Before: | McWilliam AsJ |
Decision: | See [98] |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from the Magistrates Court against conviction – where prosecution proceeded on a differently particularised charge – where the change in particulars was a material part of the charge – whether finding of interference with a conveyance was unreasonable or a denial of procedural fairness – whether finding of dangerous driving was unreasonable |
Legislation Cited: | Criminal Code 2002 (ACT) ss 56, 318 |
Cases Cited: | Asim v Penrose & Anor [2010] NSWCA 366 Gillard v The Queen [2013] ACTCA 17 |
Parties: | Jonathan Monaghan (Appellant) Paul Calatzis (Respondent) |
Representation: | Counsel S McLaughlin (Appellant) C Muthurajah (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 43 of 2020 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Chief Magistrate Walker Date of Decision: 16 July 2020 Case Title: Calatzis v Monaghan Court File Numbers: CC 676 of 2020 CC 3029 of 2020 |
McWilliam AsJ:
Introduction
On 16 July 2020, Chief Magistrate Walker found the appellant, Jonathan Monaghan, guilty of two offences:
(a)CC2020/676 – dangerous driving, contrary to s 7(1) of the Road Transport (Safety and Transport Management) Act 1999 (ACT) (the Road Transport Act); and
(b)CC2020/3029 – interfering with a conveyance, contrary to s 28(2)(e) of the Crimes Act 1900 (ACT) (the Crimes Act).
For ease of reading, I will refer to each charge as the dangerous driving charge and the interference charge respectively.
The offences relate to a set of largely agreed factual circumstances. On 24 December 2019, the police had been notified of a stolen motor vehicle, being a Mazda 2, which had been sighted at a service station in Hawker, ACT. Two police officers in an unmarked police vehicle drove into the service station and stopped in front of the Mazda 2. The appellant was sitting in the driver’s seat of the Mazda 2. One police officer exited the police vehicle. He shouted, “Police. Get out of the vehicle”. The appellant swore and drove the Mazda 2 forward, colliding with the front of the police vehicle and it was found that the collision caused damage. The appellant then reversed the stolen car before accelerating forward a second time, hitting the police vehicle again. At that point, the appellant was arrested.
He was charged with several offences, including those the subject of this appeal. One of the offences to which the appellant pleaded guilty was the offence of driving the Mazda 2 dishonestly and without consent, in contravention of s 318(2) of the Criminal Code 2002 (ACT) (the Criminal Code).
In respect of each of the charges set out above, the appellant pleaded not guilty. Following a contested hearing, he was found guilty in the court below of each charge but has not yet been sentenced for these offences due to the bringing of this appeal.
Nature of the appeal
The appeal is brought under Div 3.10.2 of the Magistrates Court Act 1930 (ACT), (the Magistrates Court Act); specifically, s 208(1)(b) which establishes the Court’s jurisdiction to hear an appeal against conviction for a summary offence. Although no conviction has yet been recorded (the words used by the court below were that each offence was proved), a finding of guilt is a “conviction” for the purpose of s 208(1)(b): Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190 at [107].
The grounds of appeal may be summarised as follows:
(a)Error in the court below in relation to the interference charge, in not determining the charge as particularised (Issue 1).
(b)The verdict of guilty in relation to the interference charge is unreasonable (Issue 2).
(c)The verdict of guilty in relation to the dangerous driving charge is unreasonable (Issue 3).
These have been re-ordered from the grounds set out in the Notice of Appeal filed 10 August 2020, as what is now Issue 1 raises the most substantial issue and should be dealt with first.
For each of the charges, the appellant seeks orders that the “conviction” be set aside and verdicts of not guilty be entered pursuant to s 218 of the Magistrates Court Act.
Issue 1: Did the court below err in failing to determine the charge as particularised?
a) Nature of the charge
The relevant offence provision of the Crimes Act provides as follows:
28Act endangering health etc.
…
(2)A person who intentionally and unlawfully—
…
(e) interferes with any conveyance or transport facility or any public utility service in circumstances dangerous to the health, safety or physical wellbeing of another person;
is guilty of an offence punishable, on conviction, by imprisonment for 5 years.
Section 28(1) of the Crimes Act contains definitions of “interferes with” and “conveyance” by reference to s 27.
An “interference” is “any act or omission that, whether temporarily or permanently, damages, renders inoperative, obstructs, causes to malfunction or puts to an improper purpose”: s 27(2) of the Crimes Act.
The word “conveyance” relevantly includes a vehicle: s 27(1) of the Crimes Act.
The information that was laid, and upon which the appellant was charged, is as follows:
THAT [THE APPELLANT] IN THE AUSTRALIAN CAPITAL TERRITORY, ON 06 JANUARY 2020, INTENTIONALLY AND UNLAWFULLY, DID INTERFERE WITH A CONVEYANCE, NAMELY, A GREY MAZDA 2 BEARING ACT REGISTRATION YMW01T, IN CIRCUMSTANCES DANGEROUS TO THE PHYSICAL WELL-BEING OF ANOTHER PERSON.
Critically for this ground of appeal, it should be emphasised that the charge was not particularised as the police car that was hit by the Mazda 2. The vehicle particularised in the charge, being the Mazda 2, was the stolen car which the appellant was driving.
(b) Findings in the court below
The finding in the court below in relation to the interference charge was as follows:
[T]he defendant’s intentional conduct permanently affected the physical integrity of the police vehicle. I am satisfied that the defendant’s conduct does amount to an interference with the police conveyance.
It is clear that the court below was referring to a different vehicle from that particularised in the charge.
The reference to the police vehicle was a product of the manner in which the matter was heard in the court below. The charge had previously been read out at an earlier date when the appellant entered a plea of not guilty. There were no opening addresses by either the prosecutor or the appellant. Instead, the matter proceeded by way of a hand-up brief of evidence, which was tendered by consent and which the Chief Magistrate read. The appellant indicated that there was no defence case. Following this, both parties made closing submissions.
The closing submissions of the prosecution in the court below included the following (emphasis added):
…In relation to the first element, interfere is defined in section 27(2) of the Act, and that is:
‘it shall be taken to include any act or omission that, whether temporarily or permanently damages’,
and I emphasise that. That is what the prosecution relies on in relation to the interference. You Honour has the images of the, albeit minor, damage to the police vehicle. A conveyance of course is defined as including a vehicle. Your Honour would be satisfied that the accused damaged a vehicle.
The submissions of the prosecution then went on to deal with the next element of the charge, being whether the interference was in circumstances dangerous to the health, safety or physical wellbeing of another person.
Counsel for the appellant in the court below (who was not the same legal representative on the appeal) commenced her submissions by relying on R v Galvin [1998] ACTSC 104 (Galvin).She first drew attention to the fact that in Galvin, there was a different charge under consideration, namely s 27(3) of the Crimes Act. She then explained that the words of that charge were in identical terms to the relevant language of s 28(2)(e) of the Crimes Act. As a result, the case of Galvin was ‘entirely relevant to the element of interference.’
The appellant’s counsel then went on to explain that Galvin was a case where the defendant was a passenger in a vehicle who had leaned over and pulled the handbrake, causing the driver to roll the car and ultimately the driver was injured.
She drew attention to two passages in Galvin; the first commencing at [48] and the second commencing at [57]:
[48] The question is whether the reference to “interferes with any conveyance… is intended to focus on the activity of driving the conveyance or its physical integrity and associated infrastructure. That is, whether the purpose of [the section] is the protection of the conveyance from external threat, rather than the protection of those conveyed from the culpable driving or operation of the conveyance, whether by the usual operator or by some passenger who, as in this case, has seized control, whether temporarily or otherwise”.
…
[57] If the definition of “interference” in [the section] is then considered, it seems apparent to me that it is used in relation to the various means of transportation to which it applies, in the sense of a “tampering” with the vehicle itself so as to cause it temporarily or permanently to function otherwise than according to its proper purpose.
[58] The use of the vehicle as a weapon against another, as was allegedly done here, is not conduct that comes within [the section]. …
The appellant’s counsel in the court below then said:
Before we get to the question of dangerous, ultimately in my submission that charge cannot stand.
The argument then moved to whether the conduct was dangerous to the health, safety or physical well-being of another person.
(c) Appellant’s arguments on appeal
There were two limbs to the appellant’s arguments on appeal:
(a)The finding in the court below was a finding of guilty on a charge which did not exist and cannot amount to a determination of the interference charge; and
(b)The finding in the court below was a product of a denial of procedural fairness.
With regard to the first limb, the charge that did not exist was the charge that the vehicle with which the appellant had interfered was the police vehicle. The finding of guilt cannot amount to a determination of the interference charge, which was particularised as the vehicle being the stolen Mazda 2.
With regard to the second limb, the denial of procedural fairness was the prosecution of a charge with different particulars without notice to the appellant. The first time the prosecution disclosed that the case was being put on a basis other than the particulars of the charge was in the prosecutor’s closing address. The passage of the transcript where the case was first disclosed is extracted at [19] above.
The appellant contends there was no application by the prosecution in the court below to amend the charge, either at the closing stage or at all. Indeed, no party appeared to raise any issue or question over which vehicle was the correct conveyance.
The appellant argues he was entitled to rely on the particulars of the charge in entering his plea of not guilty and conducting his case before the court. In that regard, he relies on the following statement of the High Court in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; 239 CLR 531 (Kirk) at [26]:
The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge.
Further references were made to R vTangye (1997) 92 A Crim R 545 in relation to the purpose and the importance of a Crown prosecutor’s opening address. Although it was in relation to jury trials, Hunt CJ at CL stated (at 556) that if the Crown’s case is not identified at that early stage of proceedings, “it is vital that it be identified with some precision … before counsel commence their final addresses.”
The appellant submits that there were considerable differences between the prosecution case – run on the basis of interference with the police vehicle – and the case that the appellant was seeking to meet as particularised in the charge, being interference with the Mazda 2.
In this regard, the appellant highlighted the substance of his closing address, which focused significantly on Galvin in respect of the element of interference with a conveyance. As seen from the passages in Galvin relied upon by the appellant in the court below (and extracted above at [23] of these reasons), the appellant relied upon the finding by Higgins J that “interference” does not extend to internal interference with a conveyance by a person inside that vehicle. This led to the appellant submitting that the charge could not stand.
Counsel for the appellant submits orally that the argument based on Galvin is plainly referable to the particulars of the charge being the interference with the Mazda 2. The appellant’s argument in the court below would not have made sense if the case was understood in the way the prosecution argued it, and the court below accepted; namely, external interference with a separate vehicle. Accordingly, it cannot be said that the denial of procedural fairness had no material effect on the trial.
(d) Respondent’s arguments on appeal
The prosecution, as respondent to the appeal, acknowledges that there was a difference between the vehicle particularised as the subject of the charge, and the way in which the prosecution ran the case at the hearing. However, it is said that:
(a)no error arises from this fact because of the legal distinction between the elements of a charge and particulars; and
(b)the appellant was not deprived of a fair hearing, as no irreparable prejudice arising out of the way in which the prosecution ran its case below has been identified.
With regard to the first limb of complaint, the prosecution submits that the prosecution’s burden of proving every element of an offence beyond a reasonable doubt (s 56 of the Criminal Code) does not extend to a requirement that every fact relied on to prove an element must be so proved: Shepherd v The Queen [1990] HCA 56; 170 CLR 573 at 579-580 per Dawson J.
Section 28(2)(e) of the Crimes Act only requires the prosecution to prove intentional and unlawful interference with “any conveyance… in circumstances dangerous to the health, safety or physical wellbeing of another person” (emphasis added).
Reliance is also placed on the fact that s 28 of the Magistrates Court Act permits the amendment of an information where there is a variance between the information and the evidence adduced at the hearing, so long as the amendment does not create a different offence: Wade v Evans [2003] ACTSC 85; 180 FLR 290 at 293 per Connolly J.
The prosecution therefore argues that because the case run by the prosecution, and the offence found proven in the court below, was the same charge as provided for in s 28(2)(e), it was open for the court below to find the elements of the offence proved.
In relation to the complaint of a denial of procedural fairness, the prosecution’s submissions focus on the power to amend the particulars of an indictment and whether the failure to amend the particulars in the present case caused any prejudice to the appellant, or would have produced a different result.
The prosecution submits:
(a) The power to amend an indictment is a wide power, and amendments to an indictment can be made at any point during the trial, including after the close of the prosecution’s case: Gillard v The Queen [2013] ACTCA 17 at [65]-[69]; R v Girvan (No 2) [2013] ACTSC 138 (Girvan) at [36]-[37].
(b) When evidence at trial departs in some respect of another from the particulars, the amending the particulars is the “usual course”: R v Masina (No 3) [2020] ACTSC 154 at [13], citing R v Jarvis (a pseudonym) [2018] VSCA 173; 55 VR 543 at [260].
(c) An amendment to an indictment should not be permitted where injustice or irreparable prejudice is caused, but it is necessary to identify the prejudice or unfairness that the amendment is said to cause: Girvan at [38].
In the present case, the prosecution submits that the appellant was given an opportunity to respond to the case as put by the prosecution, including an adjournment following the presentation of the prosecution’s case, during which the Chief Magistrate reviewed the tendered material. Nothing was said in the court below about the way the prosecution argued the case or any issues of prejudice arising from the case being different from the particulars. Instead, the appellant’s solicitor ‘chose to focus her submissions’ on the fact that the ‘interference’ element was not made out.
The prosecution again accepts that no express amendment was made to the particulars in the present case but argues that any such amendment would not have produced a different result, nor any prejudice to the appellant. Further, the appellant has failed to identify any irreparable prejudice suffered by him as a result of the change of the particulars in relation to the element of the conveyance.
(e) Determination of Issue 1: Error is established
For reasons that follow, each of the limbs is Issue 1 reveals error in the court below.
Dealing with the first limb and the charge as particularised, it is uncontroversial that the prosecution needs to establish each element of the charge but does not have to establish every fact supporting each element. However, the charge itself must identify the essential factual ingredients of the actual offence, described as the “material particulars”: see John L. Pty Ltd v Attorney-General (NSW) [1987] HCA 4; 163 CLR 508 (John L) at 519-520 and the authorities there-cited.
It is no answer to say that the element of interference with a ‘conveyance’ was proven because both the Mazda 2 and the police vehicle were cars, or because they each fall within the definition of a ‘conveyance’. The subject matter of the element is fundamental to establishing the element itself.
Here, as the identity of the vehicle was a material particular, the error was not without significance. There being no amendment made to the particulars, the appellant was indeed found guilty of a charge that did not exist.
Turning to the second limb of the argument, I find that the appellant was also denied procedural fairness. This case does not require a detailed discussion of the requirements of procedural fairness. It is sufficient to state that procedural fairness is concerned with an accused person’s ability to know the case against them and to have sufficient opportunity to be heard in response. Put another way, the obligation of procedural fairness includes the basic proposition that the accused must be provided with ‘the substance of the charge which he is called upon to meet’: John L at 519.
It is apparent from reading the transcript that the prosecution did not realise the charge itself referred to a different vehicle as the conveyance. That misled the Chief Magistrate as to the identify of the conveyance in question on the charge. It is also clear that because the prosecution did not expressly raise the change in particulars, the legal representative for the appellant did not appreciate a different case was being argued from the one specified in the charge. She had prepared her submissions based on the particulars of the charge, and her ‘choice’ of focussing on the fact that the interference element was not made out, by relying heavily on Galvin as determining the question, was entirely understandable on the basis that that was the particularised case the appellant’s counsel thought the appellant had to meet.
The respondent’s submission that it was open to the appellant to seek an adjournment or raise any issue about the case as particularised in the closing address is predicated on the assumption that the appellant understood the case was proceeding on the basis of different particulars to those contained in the information.
In circumstances where the hand-up brief did not make that change clear, the prosecution did not make the change clear by way of an opening, and the Chief Magistrate’s questions to the appellant’s counsel did not make it clear that what was in contemplation was a different vehicle than that particularised, I have concluded that the two parties were like ships passing in the night, both apparently unaware that they were presenting and seeking to respond to two different cases.
The submission that any amendment would not have produced a different result (that is, there was no practical injustice) should be rejected. The appellant pleaded not guilty on the basis of the particulars of the charge at a prior occasion, and had elected not to present a defence case at the hearing, a strategy which may have been different had the case been presented as interfering with the police vehicle.
Further, as I have found, the appellant also suffered prejudice by the procedure adopted. That prejudice was a failure by the appellant’s counsel to appreciate that the case as presented by the prosecution (and as understood by the Chief Magistrate) was different to the case that the appellant had come prepared to answer.
By denying the appellant the ability to know the case ultimately put against him, he lost the opportunity to tailor his instructions, plea and defence to that case.
None of this is intended to criticise the procedure adopted in the court below per se; that is, the above findings are not to be taken as any indication that it was inappropriate to pass over an opening address, or not to revisit the precise particulars of the charge during a busy list of the Magistrates Court, especially where the judicial officer is dealing with a number of charges arising out of the one incident. Magistrates are entitled to rely upon the legal representatives and in particular, the prosecution, to ensure that the charge as particularised is in fact that which is prosecuted. What has been said above is directed to explaining that where procedural short cuts are taken, they must be done with care to ensure that everyone understands the case being run.
The question then arises as to whether the charge ought be remitted for further determination according to law, as submitted by the prosecution in the event that error was found, or whether the charge should be dismissed, being the result for which the appellant contends.
The authority of Galvin is persuasive, and to my mind, determinative of this point. I respectfully agree with Connolly J that the concept of interference with a conveyance is not directed towards conduct where a vehicle is driven in a manner akin to use as a weapon. Therefore, if the charge was determined as particularised – on the basis of the Mazda 2 being the relevant conveyance – then Galvin supports a finding that the appellant cannot be guilty of that offence. Accordingly, there is no reason to remit the interference charge.
Issue 2: Is the verdict of guilty in relation to the charge of interfering with a conveyance unreasonable?
The appellant’s written submissions asserted that the verdict of guilty in relation to the interference charge was unreasonable for the same reasons as those set out in relation to Issue 1. The appellant argues that as Issue 1 has succeeded, Issue 2 ought also to succeed.
The appellant further submits (in the alternative) that if the charge were taken as particularised with the police vehicle being the conveyance, then the finding of the court below was still unreasonable, on the basis of the separate finding of the court below concerning the element of damage that forms part of the meaning of “interference” as defined in s 27(2) of the Crimes Act.
The appellant argued that the Chief Magistrate’s finding that the appellant occasioned damage to the police vehicle was affected by two problems. Firstly, there was insufficient evidence capable of supporting a finding that the vehicle had in fact been damaged. Secondly, there was an absence of any evidence before the court that established that any damage to the police vehicle did not exist prior to the appellant colliding with the police vehicle.
The respondent submits that it was open to the court below to find the offence proved, based on coloured photos of the police vehicle and the appellant’s own concessions about the property damage to that vehicle at the hearing.
In light of the two independent findings of error in relation to Issue 1, it is unnecessary to deal with this further aspect of error alleged in relation to the same charge.
Issue 3: Is the verdict of guilty in relation to the charge of dangerous driving unreasonable?
(a) Nature of the charge
With regard to the dangerous driving charge, s 7(1) of the Road Transport Act is in the following terms:
(1) A person must not drive a motor vehicle furiously, recklessly, or at a speed or in a way that is dangerous to the public, on a road or road related area.
The emphasised words were those relied upon by the prosecution in the present case.
What is considered to be ‘dangerous to the public’ is not defined in the Road Transport Act. However, there is established authority in McBride v R [1966] HCA 22; 115 CLR 44 (McBride) at [12] and [14] per Barwick CJ:
[12] This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.
...
[14] This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others.
See also King v R [2012] HCA 24; 245 CLR 588 at [32]-[33], citing the above passages. At [34], The plurality referred to Jiminez v The Queen [1992] HCA 14; 173 CLR 572 (Jiminez) at 579 as authority for the proposition that:
…the level of risk engendered by dangerous driving must be greater than that ordinarily associated with the driving of a motor vehicle.
The plurality went on to state at [38]:
The ordinary meaning of 'dangerous' is '[f]raught with or causing danger; involving risk; perilous; hazardous; unsafe'. It describes, when applied to driving, a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver's own passengers.
Then at [46], the plurality referred to the degree of risk being that set out by Barwick CJ in McBride, and adopted in Jiminez, stating:
…It may be that in many if not most cases dangerous driving is a manifestation of negligence in the sense of carelessness. It may also be a manifestation ofdeliberate risk-taking behaviour. …
(b) Applicable legal principles on appeal
When faced with an appeal on the basis that the verdict is unreasonable, the settled approach has been set out in The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 at [66], citing M v The Queen [1994] HCA 63; 181 CLR 487 at 494-495. The question is whether the Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
Recently in Muench v McCue [2020] ACTCA 17, the Court of Appeal referred to that principle and went on to state at [110]:
The same principles must apply when considering whether a finding of guilt by a magistrate or judge, sitting alone and without a jury, was unreasonable.
(c) Findings of the court below
The relevant passage of the transcript where the Chief Magistrate’s finding and reasoning are recorded is as follows (emphasis added):
Having regard to the authority of McBride, I am satisfied that the circumstances evidencing the dangerousness or otherwise of driving may be either intrinsic to the driving conduct or may be viewed as dangerous, having regard to the particular circumstances. Dangerous as a concept incorporates harm which may arise as well as actual harm. This does not extend to consideration of speculative risk, but certainly there is no requirement that a risk of harm materialises in order for the court to be satisfied that the driving conduct is in fact dangerous.
The danger identified in the section is to the public. I am therefore satisfied that it imports danger to persons rather than property…
I take the following circumstances into account here: The defendant intentionally drove his motor vehicle straight into the side of another motor vehicle, what might be described as a ram. His clear intent was to attempt to move the vehicle in front of him so as to make a getaway, which could only be affected by moving the vehicle in front regardless of the risk to others in and around that vehicle. He did so in full knowledge that people were moving around the vehicles.
He must have applied a significant degree of force to the accelerator in order to cause damage over such a short distance. He clearly had little or no regard to the safety of those around the vehicle, including the officer whose body was partially in the vehicle and he was standing close by to it. In the circumstances, I have no difficulty being satisfied beyond reasonable doubt that the driving, albeit in constrained circumstances, was dangerous.
The emphasised words in the above extract highlight the references to intention and knowledge in the reasoning of the Chief Magistrate.
(d) Appellant’s submissions on appeal
The appellant submits that the court below erred in applying a standard of dangerous that derived from the subjective circumstances or impressions of the police officers in the vicinity of the Mazda 2, as opposed to an objective standard of dangerous. In particular, the offence of dangerous driving does not require proof of any mens rea. The appellant relies on the following passage from R v Coventry [1938] HCA 31; 59 CLR 633 at 637, per Latham CJ, Rich Dixon and McTiernan JJ:
The jury is to determine, not whether the accused was in fact, as a matter of psychology, indifferent or not to the public safety, but whether he has driving in a manner which was dangerous to the public. The standard is an objective standard, “impersonal and universal, fixed in relation to the safety of other users of the highway”.
The appellant submits that the objective evidence is that the appellant drove a vehicle into the side of an unmarked police car, travelling a distance of approximately 1m. The limited distance the appellant was able to travel constrained the degree of momentum or propulsion that he was able to achieve in accelerating the vehicle.
Although the court below inferred that significant force must have been applied to cause damage over a short distance, there was no evidence of the condition of the unmarked police vehicle prior to the incident, so that it could not be established beyond reasonable doubt that the scratch to the left hand front quarter of the vehicle was caused by the appellant’s conduct.
The appellant also takes issue with the evidence of the amount of force as drawn from the statements of police officers, submitting that the only description which sheds any light on the degree of force applied was the account of First Constable (FC) Elias Nikias, where he testified to feeling the police vehicle move at the time of the second collision.
The appellant says that it is difficult to appreciate the potential for harm or injury that the police officers were in. In relation to the weight placed by the Chief Magistrate on the fact that a police officer’s arm was partially in the driver’s window at the time the appellant drove the vehicle forward, the appellant submits that it is unclear what potential for harm or injury was being contemplated as a possible consequence.
The written submissions of the appellant argue:
One potential articulated by the learned Chief Magistrate in the course of the proceedings was the risk that the officer’s foot would be run over by the front wheel when the [a]ppellant reversed, however, the footage makes it clear that the [a]ppellant did not reverse the vehicle back any further than its original position, and so the police officer’s feet and body were not brought into any closer proximity to the front right-hand wheel of the vehicle by the [a]ppellant’s manner of driving.
As to the other police officers, the appellant submits none of them were positioned in such a way as would place them at any risk of harm or injury.
(e) Respondent’s submissions on appeal
The respondent agrees that the required standard of dangerousness is an objective one but submits that the correct test was applied. The fact that the test is objective does not preclude the magistrate from making an assessment of the appellant’s intent or any other relevant subjective factors.
The respondent draws the Court’s attention to five key items of evidence. First, there is the CCTV footage depicting the incident. The CCTV footage shows the Mazda 2 being driven by the appellant into the unmarked police car two times and reversing into the other police car behind it once. The CCTV footage also shows the proximity of a number of police officers moving around the vehicle at various times when the Mazda 2 is being driven by the appellant.
Second, there is the unchallenged evidence of Senior Constable Russell. The relevant passages of his statement are as follows (emphasis added):
[FC Nikias] and I immediately drove to the Caltex service station in question, and observed the [Mazda 2] stationary at a petrol pump with a Caucasian male fuelling the vehicle.
[FC Nikias] parked our police vehicle in front of the [Mazda 2], and I exited the passenger door. I immediately approached the driver’s side of the [Mazda 2] and observed the driver’s window to be open. I clearly observed the defendant in the driver’s seat of the vehicle. The defendant initially appeared to be looking down and was unaware of our presence.
I shouted words to the effect of: “Police. Get out of the vehicle, Get out of the vehicle.”
The defendant looked up, clearly startled, and looked at me.
The defendant said: “Oh fuck.”
The [Mazda 2] immediately moved forward and collided with the front of our police vehicle. This occurred two, possibly three times in rapid succession.
During this time, D/Sgt Saunders parked his Police vehicle behind the [Mazda 2].
I formed the opinion that the defendant intended to flee, regardless of the danger his actions may place other persons in. I was aware that in addition to myself, [FC Nikias], D/Sgt Saunders and his partner, Senior Constable (SC) Christine Walters, would be on foot around the [Mazda 2] and placed at risk of death or serious injury by the defendant’s actions.
I drew my AFP issued firearm and pointed at the defendant. I continued to shout words to the effect of “stop the car” and “get out of the car”. With my left hand, I attempted to open the driver’s door but it was locked, I then reached in to the car to attempt to remove the ignition key, before I realised the car did not have a visible ignition key.
Third, there is the unchallenged evidence of FC Nikias. The relevant passages of his statement are as follows (emphasis added):
I positioned our Police vehicle directly in front of the Mazda [2] and stopped. S/C Russell exited the vehicle and approached the driver’s side door of the Mazda [2]. I observed the Mazda [2] move forward towards the Police vehicle.
I exited from the Police vehicle. As I exited, I observed the Mazda [2] more (sic) forward again and felt the Police vehicle move.
Fourth, there is the unchallenged evidence of SC Walters. The relevant passages of her statement are as follows:
As SC Russell exited the Police vehicle and moved towards the driver door of the grey Mazda 2, I observed the grey Mazda 2 drive forward and collide with the Police vehicle twice.
D/Sgt Saunders parked behind the grey Mazda 2 and I observed SC Russell and FC Nikias standing at the driver door of the grey Mazda 2 attempting to stop the vehicle from leaving the location.
Fifth, there is the unchallenged evidence of Detective Sergeant Morgan Saunders. The relevant passages of his statement are as follows:
I observed the grey Mazda 2 drive forward two times, colliding with the unmarked police vehicle that was being driven by SC Russell and FC Nikias. I also observed SC Russell and FC Nikias standing next to the driver’s side window, in close proximity to the grey Mazda [2] directing [the appellant] to stop the vehicle. FC Nikias had his firearm drawn and aimed at [the appellant] whilst giving him those directions.
As I parked my police vehicle behind the grey Mazda 2, I observed the reverse lights [come on] and the grey Mazda 2 reverse into the front of my police vehicle.
The respondent submits that when the whole of the evidence in the court below is considered, the Court would find that the verdict of guilty was open to the Chief Magistrate.
(f) Determination of Issue 3: No error established
I accept the appellant’s submission that there is no requirement for an intention to be established as part of the elements of the offence. However, that does not mean that the Chief Magistrate was in error to refer to the driving of the vehicle as intentional. As the respondent submits, a finding that an intention exists as part of the particular circumstances of the driving is not a finding that applies an erroneous standard.
The question is whether the finding in respect of the dangerous driving charge was open to the Chief Magistrate.
In the present case, words may not do justice to what the CCTV captures from two different angles, but it will suffice to note that it reveals the following:
(a)When the police vehicle pulled up in front of the Mazda 2, it did so at a very close distance. Indeed, when the police officer on the passenger side opened his door (SC Russell), the door was almost touching the Mazda 2.
(b)The police officer moved forward to the driver’s window of the Mazda 2. He was standing at the window when the appellant first drove the Mazda 2 into the police car.
(c)The driver of the police car (FC Nikias) was sitting in the police car at the time of the first collision. Consistent with that policeman’s statement, his body was plainly subjected to the force of the collision – whatever that force may have been – as he was still in the police car.
(d)The Mazda 2 then reversed, by which time the other police officer (SC Russell) had his arm in the driver’s window. At that point, the appellant drove the Mazda 2 forward a second time.
I am mindful that the Court viewing video material must exercise caution in interpreting photographic evidence, which would include the CCTV footage, and in particular as to what inferences to draw from what is shown: see Asim v Penrose & Anor [2010] NSWCA 366 at [57] at the cases there-cited. What the CCTV footage objectively portrays is the appellant engaging in deliberate risk-taking behaviour in his manner of driving the Mazda 2. That is evident from the fact that the Mazda 2 was driven into the police vehicle not once, but twice. The vehicle was not driven gently or cautiously, as is clear from the CCTV footage, but with a degree of force. By that conduct, the danger posed to each of the police officers in question was more than that ordinarily associated with the driving of a motor vehicle.
The location of the appellant’s conduct is also a relevant circumstance, in that this was a petrol station and at the time the vehicle was being propelled forward by the appellant, there were police officers in obvious proximity to the vehicle.
The submission that it is unclear what potential for harm or injury there was is somewhat bold, if not misconceived. The circumstances were that a stolen vehicle was being used to ram a police vehicle out of the way, as a policeman was exiting that vehicle and as another policeman had his arm in the vehicle that the appellant was driving. At the very least, there was a real risk of physical injury to each of those policemen. Considering the location, the presence of people, and the collision with not one but two vehicles on multiple occasions, there is no doubt that the manner of the appellant’s driving was ‘in serious breach of the proper conduct of the vehicle’, to use the language of McBride as set out above at [65] of these reasons.
The appellant’s focus on the danger posed, being the possibility for injury, by examining whether the Mazda 2 vehicle reversed back any further than its original position also misconceives the test. The fact that the Mazda 2 did not run over a policeman’s foot or injure the arm of the policeman at the window of the car was more a product of good luck than good management. On no view can it be said that the risk of injury to S/C Russell was speculative.
That brings me to consider the appellant’s submission that the damage to the police vehicle was not able to be established beyond reasonable doubt. I accept that submission, but damage is not an essential element of the charge of dangerous driving. The court below was concerned with harm that may arise, and the essence of the finding was the degree of force being used notwithstanding the short distance. If the evidence of damage is put to one side, there was unchallenged evidence from the policeman who was in the process of exiting the vehicle (FC Nikias) that he felt the vehicle move. Furthermore, the forceful manner in which the Mazda 2 was driven, notwithstanding the short distance the Mazda 2 actually travelled, was open to the Chief Magistrate on the CCTV footage alone.
Even if the evidence about damage to the police car and the reasoning on that aspect in the court below is put to one side, the remaining evidence confirms that it was open to the Chief Magistrate to be satisfied beyond reasonable doubt that the accused was guilty of the offence as charged.
Accordingly, the finding of the court below was not unreasonable. Issue 3 has not been made out.
Conclusion and orders
For the above reasons, the appeal has been partly successful in that the interference charge cannot be maintained, but no error has been established with regard to the dangerous driving charge.
The orders of the Court are as follows:
(1) The appeal is allowed in part.
(2) In relation to the charge CC2020/3029, being interfering with a conveyance, contrary to s 28(2)(e) of the Crimes Act 1900 (ACT), the verdict of guilty is set aside and in lieu thereof, a verdict of not guilty is entered on that charge.
(3) In relation to the charge CC2020/676, being dangerous driving, contrary to s 7(1) of the Road Transport (Safety and Transport Management) Act 1999 (ACT), the appeal is otherwise dismissed.
| I certify that the preceding ninety-eight [98] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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