Peters v The State of Western Australia [No 2]
[2013] WASCA 205
•30 AUGUST 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PETERS -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 205
CORAM: PULLIN JA
BUSS JA
MAZZA JA
HEARD: 24 MAY 2013
DELIVERED : 30 AUGUST 2013
FILE NO/S: CACR 176 of 2012
BETWEEN: NAOMI FLORA PETERS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAVRIANOU DCJ
File No :IND BRO 41 of 2011
Catchwords:
Criminal law - Appeal against conviction - Driving motor vehicle while intoxicated - Motor vehicle incident causing death - Defence of unwilled act - Whether the appellant was driving the car - Meaning of driving
Legislation:
Criminal Appeals Act 2004 (WA), s 30
Criminal Code (WA), s 23A
Road Traffic Act 1974 (WA), s 5, s 59, s 59B
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Ms S H Linton
Solicitors:
Appellant: N R Barber Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Gillespie v The State of Western Australia [2013] WASCA 149
Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209
Lodge v Magorian [2012] WASCA 90; (2012) 42 WAR 270
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
R v Affleck (1992) 17 MVR 282
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
PULLIN JA: I agree with Mazza JA.
BUSS JA: This is an application for an extension of time to appeal against conviction.
The appellant was convicted, after a trial in the District Court before Stavrianou DCJ and a jury, on one count in an indictment which alleged an offence contrary to s 59(1)(a) of the Road Traffic Act 1971 (WA) (the Act).
The count reads:
On 1 November 2010 at Broome a motor vehicle, namely a Suzuki Vitara registration number 1CSB194, driven by [the appellant] was involved in an incident occasioning the death of Declan Alfonse Bin‑Hitam and that at the time of the incident [the appellant] drove the motor vehicle while under the influence of alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle.
The appellant did not file her appeal notice until 8 August 2012. The last date for appealing was 13 July 2012. The application for an extension of time is supported by an affidavit sworn 8 August 2012 by her then solicitor, Matthew Alexander Holgate.
On 23 January 2013, Mazza JA referred the application for an extension of time to the hearing of the appeal. It is convenient to consider the merits of the grounds of appeal before deciding whether an extension of time should be granted.
The relevant facts and circumstances
The relevant facts and circumstances are set out in the reasons of Mazza JA (with which Pullin JA has expressed his agreement). I will not repeat them except to the extent necessary to explain my reasons.
On 1 November 2010, the appellant was driving a motor vehicle from Derby to Broome. Vivian Bin‑Hitam (the mother of Declan, aged 17 months) was sitting in the front passenger seat. She was nursing Declan on her lap. Her three other children were sitting in the back seat of the vehicle.
During the journey the appellant's vehicle veered to the left. The vehicle travelled onto the shoulder of the road, rolled and came to rest in some bushes. Declan was thrown from the vehicle and died.
After the accident a sample of the appellant's blood was tested. It contained 0.136 g of alcohol per 100 ml of blood. At the time of the accident her blood alcohol level was 0.12%. Testing also established that at the time of the accident the appellant's blood contained 2.9 mg per litre of tetrahydrocannabinol. Professor David Joyce, a clinical pharmacologist called by the State, gave evidence that no‑one could drive a vehicle safely with the appellant's levels of intoxication from alcohol and cannabis.
The appellant gave sworn evidence at trial. She said:
(a)Before the accident Ms Bin‑Hitam kept telling the appellant to 'look at the kids' (ts 192);
(b)The appellant told Ms Bin‑Hitam that she had 'seen [the kids]'. She did 'have a look [at the kids]', but 'just had a quick look and kept [her] eyes back to the road' (ts 192);
(c)Just before they went off the road, Ms Bin‑Hitam held the appellant's arm and kept telling her to have a look at the children in the back (ts 192);
(d)Ms Bin‑Hitam 'just held onto [the appellant's arm]' (ts 193);
(e)Ms Bin‑Hitam 'pulled [the appellant's arm]' (ts 193);
(f)Ms Bin‑Hitam was 'holding [the appellant's arm] a bit but then when [they] hit the dirt [Ms Bin‑Hitam] said, "what's happening", and "sorry"'. The appellant '[had not] been in that sort of situation before, [she] couldn't control it'. She 'didn't know what to do' (ts 193);
(g)She 'wasn't that drunk [or] stoned', she knew what she was doing, she was capable of driving and handling the car, but was distracted by her arm being pulled (ts 213).
Various provisions of the Act
Various provisions of the Act as at 1 November 2010 were as follows.
By s 5(1), in the Act, unless the contrary intention appears:
drive includes -
(a)in relation to a vehicle, to have control over the steering, movement or propulsion of the vehicle;
(b)...
regardless of whether the vehicle ... is usually referred to as being ridden rather than driven;
driver means any person driving a vehicle ...
Section 59 provided, relevantly:
(1)If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of … another person and the driver was, at the time of the incident, driving the motor vehicle ‑
(a)while under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle; or
(b)in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person,
the driver commits a crime and is liable to the penalty in subsection (3).
…
(2)For the purposes of this section ‑
[(a)deleted]
(b)it is immaterial that the death … might have been avoided by proper precaution on the part of a person other than the person charged … ;
…
Section 59B provided, relevantly:
(1)For the purposes of [section] 59 … , the circumstances in which a motor vehicle is involved in an incident occasioning the death of … a person include those in which the death … is occasioned through -
(a)the motor vehicle overturning or leaving a road while the person is being conveyed in or on the motor vehicle (whether as a passenger or otherwise);
(b)the person falling from the motor vehicle while being conveyed in or on it (whether as a passenger or otherwise);
(c)an impact between any object or thing and the motor vehicle while the person is being conveyed in or on the motor vehicle (whether as a passenger or otherwise);
(d)an impact between the person and the motor vehicle;
(e)an impact of the motor vehicle with another vehicle or an object or thing in, on or near which the person is at the time of impact;
(f)an impact with any object on or attached to the motor vehicle; or
(g)an impact with any object that is in motion through falling from the motor vehicle.
(2)For the purposes of [section] 59 … , a motor vehicle is also involved in an incident occasioning the death of … a person if the death … is occasioned through the motor vehicle ‑
(a)causing an impact between other vehicles or between another vehicle and any object, thing or person;
(b)causing another vehicle to overturn or leave a road; or
(c)causing a person being conveyed in or on another vehicle to fall from that other vehicle.
…
(5)In any proceeding for an offence against section 59 ... a person who had at the time of the alleged offence a blood alcohol content of or above 0.15g of alcohol per 100ml of blood shall be deemed to have been under the influence of alcohol to such an extent as to be incapable of having proper control of a motor vehicle at the time of the alleged offence.
(6)In any proceeding for an offence against section 59 … it is a defence for the person charged to prove that the death … occasioned by the incident was not in any way attributable (as relevant) ‑
(a)to the fact that the person charged was under the influence of alcohol, drugs, or alcohol and drugs; or
(b)to the manner (which expression includes speed) in which the motor vehicle was driven.
Analysis of various provisions of the Act
The term 'drive' is defined in s 5(1) to include, in relation to a vehicle, to have control over the steering, movement or propulsion of the vehicle. A person may be a 'driver' of a vehicle despite being denied the ability to operate one or more functions ordinarily required for driving. Two or more persons may simultaneously be the drivers of a vehicle.
It is an element of the offence created by s 59(1) that the accused was 'driving' a motor vehicle when the vehicle was involved in the 'incident' occasioning the death of another person.
Section 59(1)(a) focuses on the capacity of the accused at the time of the 'incident'; in particular, whether the accused was under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle. Section 59B(5) deems that a person who, at the time of the alleged offence, had a blood alcohol content of or above 0.15 g of alcohol per 100 ml of blood to have been under the influence of alcohol to such an extent as to be incapable of having proper control of a motor vehicle at that time. If s 59B(5) does not apply, the State must prove beyond reasonable doubt that, as a matter of fact, the accused was under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle.
Section 59(1)(b) focuses on the manner in which the accused was driving the vehicle at the time of the 'incident'; in particular, whether the vehicle was being driven in a manner (which expression includes speed) that was, in all the circumstances, dangerous to the public or any person.
Section 59B(1) and s 59B(2) focus on the movement or behaviour of the accused's vehicle, rather than on what the accused has done or not done, in determining whether the vehicle driven by the accused was involved in an 'incident' occasioning the death of a person.
What the accused has done or not done is, however, the focus of the defence under s 59B(6), in that the defence requires the accused to prove, on the balance of probabilities, that the death occasioned by the incident was not in any way attributable to the fact that he or she was under the influence of alcohol, drugs, or alcohol and drugs, or to the manner in which his or her vehicle was driven, as the case may be.
The grounds of appeal
Initially, there were three grounds of appeal. The appellant abandoned ground 1. The remaining grounds read:
Ground 2
2.The learned trial Judge erred when he failed to direct the jury as to the defence of 'unwilled act' contained in Section 23A(2) of the Criminal Code:
Particulars
2.1There was evidence capable of supporting the defence of 'unwilled act', to the extent the vehicle left the road because the appellant's arm was pulled by the front seat passenger.
2.2His Honour failed to direct the jury the State must negative the defence of unwilled act beyond reasonable doubt;
2.3His Honour's directions to the jury effectively left the defence of 'unwilled act' for the jury's consideration only if the appellant raised it on the balance of probabilities;
2.4His Honour failed to direct the jury they needed to be satisfied beyond reasonable doubt that the appellant had control of the vehicle at the time it left the road.
Ground 3
3.There was a miscarriage of justice when the learned trial judge failed to direct the jury to consider whether the appellant was 'driving' the car within the meaning of the word 'driver' as contained in Section 5 of the Road Traffic Act 1974 ('the Act'):
Particulars
3.1His Honour was required to so address the jury because the issue of whether the appellant was the 'driver' of the vehicle at the time it left the road was pivotal in establishing the first element of the offence pursuant to Section 59(1) of the Act.
3.2There was evidence capable of supporting a defence that the first element of Section 59(1)(a) of the Act was not satisfied because the appellant was not the 'driver' at the time the vehicle left the road as her arm was interfered with shortly before the car left the road.
On 20 November 2012, McLure P, Buss and Mazza JJA granted leave to appeal on ground 2. On 12 March 2013, Mazza JA granted leave to appeal on ground 3.
It is convenient to consider the merits of ground 3 before dealing with ground 2.
The merits of ground 3
At trial, there was no contest between the State and the appellant as to whether, at the time of the incident, the appellant was 'driving' the motor vehicle, within the definition of 'drive' in s 5(1) of the Act.
The appellant was represented at trial by a very experienced criminal defence lawyer. He conceded that it was not in issue that at the material time the appellant was driving the vehicle (ts 234).
At trial, the appellant denied that, at the time of the incident, she was under the influence of alcohol, drugs, or alcohol and drugs, to such an extent as to be incapable of having proper control of the vehicle. The appellant also relied on s 59B(6). She contended that if, at the time of the incident, she was under the influence of alcohol, drugs, or alcohol and drugs, to such an extent as to be incapable of having proper control of the vehicle, the death occasioned by the incident was not in any way attributable to that fact.
It cannot be concluded that the jury, by its verdict, must necessarily have rejected the appellant's evidence about Ms Bin‑Hitam having held and pulled the appellant's arm. The appellant could not make out the defence under s 59B(6) unless she satisfied the jury, on the balance of probabilities, that the death occasioned by the incident 'was not in any way attributable' to the fact that she was under the influence of alcohol, drugs, or alcohol and drugs. The jury may have concluded that the death occasioned by the incident was party attributable to Ms Bin‑Hitam having held onto and pulled the appellant's arm and partly attributable to the appellant being under the influence of alcohol and drugs.
In my opinion, no miscarriage of justice was occasioned by defence counsel's concession. It is plain, on the facts which were not in contest at trial, that at the material time the appellant was 'driving' the vehicle, within the definition of 'drive' in s 5(1). Even if Ms Bin‑Hitam held onto and pulled the appellant's arm, as alleged by the appellant in her evidence, at the material time the appellant retained control over, at least, the propulsion (that is, the accelerator and the brakes) of the vehicle.
Ground 3 fails.
The merits of ground 2
Section 23A of the Criminal Code (WA) (the Code) was not raised or relied upon by defence counsel at trial. The trial judge was not requested to consider the possible application of s 23A or give a direction in relation to it.
On appeal, counsel for the appellant and counsel for the State argued ground 2 on the assumption that, as a matter of law, it was capable of application to the offence created by s 59(1) of the Act and had not been impliedly excluded by the provisions of the Act relating to that offence. I will deal with ground 3 on that basis. The submissions advanced by counsel for the appellant were not adequate to enable the point to be resolved in this appeal.
Before the enactment of the Criminal Law Amendment (Homicide) Act 2008 (WA), s 23 of the Code read:
Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.
By s 4 of the Criminal Law Amendment (Homicide) Act, s 23 was repealed and replaced by new sections 23, 23A and 23B. Section 4 commenced on 1 August 2008.
At the material time, s 23A of the Code provided:
(1)This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.
(2)A person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will.
Section 23A reproduces, in substance, the first part of the former s 23 of the Code in relation to unwilled acts and omissions. The case law on the first part of the former s 23 is relevant to the interpretation and application of the current s 23A.
In Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, Gibbs J (Stephen J agreeing) distinguished between the unwilled physical acts or omissions of the accused apart from their consequences,
for the purposes of the first part of the former s 23 (now s 23A), and the 'accidental outcome of his willed acts', for the purposes of the second part of the former s 23 (now s 23B) (226 ‑ 227). The first part of the former s 23 (now s 23A) required that the relevant acts of the accused should be of his or her own volition; that is, that he or she should have willed that the relevant acts themselves should happen (227). The provision was not concerned with the consequences of an act which the accused had willed (227).
According to counsel for the appellant, the relevant unwilled physical act, for the purposes of s 23A, was, on the appellant's evidence at trial, the movement of the steering wheel caused by Ms Bin‑Hitam holding or pulling the appellant's arm.
In my opinion, a miscarriage of justice did not occur at trial as a result of s 23A not having been raised or relied upon by defence counsel and his Honour not having given a direction in relation to it.
As I have explained, in the context of ground 3, the appellant was 'driving' the vehicle, within the definition of 'drive' in s 5(1) of the Act, even if Ms Bin‑Hitam held onto and pulled the appellant's arm, as alleged by the appellant in her evidence. So, even if the alleged holding and pulling of the appellant's arm caused an unwilled physical act, namely the movement of the steering wheel, for the purposes of s 23A, that fact did not negate proof by the State of any element of the offence created by s 59(1), and did not absolve the appellant from criminal responsibility for the other acts which constituted 'driving' by her.
Ground 2 fails.
Conclusion
Each of the grounds of appeal is without merit. I would therefore dismiss the application for an extension of time to appeal.
MAZZA JA: This is an application for an extension of time and an appeal against conviction. The appeal notice was filed approximately 3 weeks out of time. The delay has been explained in the affidavit of the appellant's solicitor, Matthew Holgate, sworn 8 August 2012. I would grant leave to appeal out of time.
The appellant stood trial in the District Court at Broome on an indictment which alleged an offence contrary to s 59(1)(a) of the Road Traffic Act 1974 (WA) (RTA) in these terms:
On 1 November 2010 at Broome a motor vehicle, namely a Suzuki Vitara registration number *****94, driven by Naomi Flora Peters was involved in an incident occasioning the death of Declan Alfonse Bin‑Hitam and that at the time of the incident Naomi Flora Peters drove the motor vehicle while under the influence of alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle.
On 30 March 2012, the appellant was convicted as charged.
Originally, the appellant relied on three grounds of appeal. Shortly before the hearing, she abandoned ground 1. The two grounds that she pursued are as follows:
Ground 2
2.The learned trial Judge erred when he failed to direct the jury as to the defence of 'unwilled act' contained in Section 23A(2) of the Criminal Code:
Particulars
2.1There was evidence capable of supporting the defence of 'unwilled act', to the extent the vehicle left the road because the appellant's arm was pulled by the front seat passenger.
2.2His Honour failed to direct the jury the State must negative the defence of unwilled act beyond reasonable doubt;
2.3His Honour's directions to the jury effectively left the defence of 'unwilled act' for the jury's consideration only if the appellant raised it on the balance of probabilities;
2.4His Honour failed to direct the jury they needed to be satisfied beyond reasonable doubt that the appellant had control of the vehicle at the time it left the road.
Ground 3
3.There was a miscarriage of justice when the learned trial judge failed to direct the jury to consider whether the appellant was 'driving' the car within the meaning of the word 'driver' as contained in Section 5 of the Road Traffic Act 1974 ('the Act'):
Particulars
3.1His Honour was required to so address the jury because the issue of whether the appellant was the 'driver' of the vehicle at the time it left the road was pivotal in establishing the first element of the offence pursuant to Section 59(1) of the Act.
3.2There was evidence capable of supporting a defence that the first element of Section 59(1)(a) of the Act was not satisfied because the appellant was not the 'driver' at the time the vehicle left the road as her arm was interfered with shortly before the car left the road.
Leave to appeal has been granted in respect of both grounds.
For the reasons that follow, I would dismiss the appeal.
The undisputed facts
On the afternoon of 1 November 2010, the appellant left the Mowanjum community, just outside the town of Derby, in her Suzuki Vitara motor vehicle, intending to drive to Broome. In the front passenger seat was Vivian Bin‑Hitam. The rear seats were occupied by Ms Bin‑Hitam's four children, the youngest of whom was Declan. At the time he was 17 months old.
Before leaving Mowanjum, the appellant smoked some cannabis. On the way to Broome, the appellant and Ms Bin‑Hitam consumed a quantity of bourbon whiskey mixed with Cola. The journey to Broome was broken up by a number of stops, including at Pandanus Park and the Willare Roadhouse.
Not far from the roadhouse, the appellant's vehicle veered to the left on a straight stretch of road, left the roadway, rolled over and came to a stop in the bush. In the process, Declan was thrown from the car and suffered fatal injuries. He died at the scene.
Blood samples taken from the appellant revealed that at the time of the incident she had a blood alcohol reading of 0.12 g of alcohol per 100 ml of blood and a THC (tetrahydrocannabinol, the active ingredient in cannabis) reading of 2.9 micrograms per one litre of blood. The appellant sustained relatively minor injuries as a result of the crash. The following day, 2 November 2010, the appellant voluntarily participated in a videotaped record of interview with police. In the course of that interview, the appellant, when specifically asked, said that no one interfered with her while she was driving the car. She did not indicate that Ms Bin‑Hitam had done anything to cause the vehicle to leave the road. The appellant denied smoking cannabis prior to the crash.
The evidence led by the State
Ms Bin‑Hitam testified on behalf of the State. She said that she and her children, who normally resided in Broome, were at the Mowanjum community on holiday. On the morning of 1 November 2010, she received word that her brother had died in tragic circumstances. Consequently, she decided to return home. At Ms Bin‑Hitam's request, the appellant agreed to drive her and her four children to Broome. Before their departure, according to Ms Bin‑Hitam, the appellant consumed a quantity of bourbon and cola and some cannabis, as did she. Ms Bin‑Hitam testified that she and the appellant drove to Derby, where the appellant filled her vehicle with petrol and purchased another bottle of bourbon. They then returned to Mowanjum and from there, in the afternoon, set out for Broome with the children in the rear passenger seat. There was not enough seatbelts in the back of the vehicle for all the children and no child restraint seat for Declan.
According to Ms Bin‑Hitam, throughout the journey she mixed bourbon and cola in a cup, which both women consumed. At Pandanus Park they stopped so that Ms Bin‑Hitam could pick up some compact discs. Ms Bin‑Hitam said that she saw the appellant consume cannabis at that location.
After leaving Pandanus Park, the appellant drove a short distance to the Willare Roadhouse, where they purchased food for the children. They then continued on their journey towards Broome.
By the time of the crash, both women had consumed a quantity of alcohol and cannabis. The appellant, the State alleged, was so intoxicated by the combined effect of the substances that she was incapable of having proper control of her vehicle. According to Ms Bin‑Hitam, during the journey both women were laughing and the appellant said that she wanted to come to Broome for a party. Ms Bin‑Hitam said that she asked the appellant to slow down on several occasions. On one of these occasions, the appellant told her 'it was Melbourne Cup day and she wanted to come to all the parties' (ts 35). Ms Bin‑Hitam testified that, just prior to the crash, Declan was passed to her so that she could breastfeed him. She then described what occurred in these terms:
Did you give him a feed?‑‑‑Yeah, I gave him my breast and he only had a couple of drinks and he just wanted to sit on my lap and play.
At this time was it dark or light?‑‑‑It was dark.
Then what happened?‑‑‑He started playing up so when I wanted to pass him back he didn't want to go. I hold him in my lap and kept driving and - but we was going too fast and I asked [the appellant] to slow down and she didn't, she was still in a hurry to go for the pub - the parties. I told her that every pub in Brome goes on all night. Parties are all the time in Broome, there's no need to rush. She didn't listen so and that's when we slid off the road and that's when it happened.
When you say you slid off the road what happened with the car?‑‑‑She sort of like lost control. We skidded out. I asked her what she was doing and that's when we - the car rolled and had the accident.
Can you remember how the car went off the road?‑‑‑We just skidded sideways and it just flipped over and just kept rolling.
Did you look at [the appellant] immediately before the crash, before the car went off the road?‑‑‑Yes, when I look at her I asked her what she was doing.
Did she have anything in her hand?‑‑‑I didn't - I didn't take notice if she had anything in her hand, I was looking at her face.
So the car flipped. You had Declan on your lap beforehand?‑‑‑Yes.
What happened with Declan?‑‑‑He sort of like flung out of my hand.
So you lost contact with Declan, he came out of your hands?‑‑‑Yeah (ts 37).
In cross‑examination, defence counsel suggested to Ms Bin‑Hitam that at the point the car veered off the road, she was pulling at the appellant's arm, a proposition she denied (ts 52 ‑ 53).
David Anthony Joyce, a professor of pharmacology and medicine at the University of Western Australia, who specialises in the effect of drugs and toxins on people, gave expert evidence on behalf of the State. Professor Joyce testified that the levels of THC and alcohol found in the appellant would have been, by themselves, sufficient to impair driving performance. Both substances, amongst other things, affect a driver's ability to make sense of an emergency and to effectively deal with it. Alcohol, unlike cannabis, causes a driver to have a sense of confidence which is misplaced. Professor Joyce described the combined effect of cannabis and alcohol as producing an intoxication that is more severe than either one alone (ts 160). In Professor Joyce's opinion, the intoxication would have rendered the appellant incapable of safely driving a motor vehicle in normal driving conditions (ts 163).
The appellant's evidence
The appellant testified that on 1 November 2010, she had no intention of going to Broome and only went there because Ms Bin‑Hitam, her cousin, had asked her to do so (ts 182, 183). She admitted smoking cannabis before leaving Mowanjum community to drive to Broome, but denied that she drank alcohol at that time. The appellant agreed that she drank bourbon and cola during the drive to Broome, but only after leaving Pandanus Park. She said that she shared 2 1/2 15 cm cups of bourbon and cola with Ms Bin‑Hitam.
In examination in chief, she described the crash in these terms:
Before the accident can you tell us what Vivian was saying leading up to the accident to you?‑‑‑She was telling me, 'Thank you for bringing me to Broome, me and my kids.' And was telling me to look at the kids.
She said, 'Thank you for being with me, for being my sister', and kept telling you to look at the kids?‑‑‑For bringing me ‑ ‑ ‑
Bringing?‑‑‑- ‑ ‑ and the kids to Broome, yeah.
And kept telling you to look at the kids?‑‑‑Yeah, she (indistinct)
When she did that what would she do when she was telling you to keep looking at the kids?‑‑‑I told her, yeah, I seen them, you know, I seen them and I did have a look but I just had a quick look and kept my eyes back to the road.
You had a quick look and you kept going. Please go on?‑‑‑I just wanted to, you know, concentrating on the road.
You were concentrating on the road. And then?‑‑‑Just before we went off the road she hold my arm and kept, you know, telling me to have a look at the kids in the back.
So before I went off the road, we went off the road, she held my arms and kept saying, 'Look at the kids'?‑‑‑Yeah, she was really drunk then.
She was really drunk. When she held your arm what sort of force did she use?‑‑‑I think she just held onto it and didn't, you know, held my arm and didn't ‑ ‑ ‑
What caused the car to go off the road?‑‑‑When she pulled my arm and I tried to ‑ ‑ ‑
When the car got off the road did she let go or continue to hold your arm?‑‑‑She was holding it a bit but then when we hit the dirt she said, 'What's happening', and sorry, you know, and I couldn't - I don't know, I haven't been in that sort of situation before, I couldn't control it. I didn't know what to do.
When we hit the dirt she said, 'What's happening,' and said sorry. Is that right?
Can you remember what happened after that?‑‑‑I can't remember. I just remember going in an ambulance (ts 192 ‑ 193).
The appellant said that she did not tell the police in the interview that she had consumed cannabis that day because she was 'frightened' (ts 196). She said that she did not mention in the interview that Ms Bin‑Hitam pulled her arm because she 'didn't want to blame her for anything' (ts 196).
The appellant conceded that she had smoked a small amount of cannabis on the day in question and consumed alcohol, but she denied that she was incapable of having proper control of her vehicle.
In cross‑examination, the prosecutor challenged the appellant's testimony as to her state of intoxication and her evidence that Ms Bin‑Hitam had pulled her arm, as the following exchange illustrates:
BURROWS, MS: You were intoxicated by alcohol and drugs that day when you drove that car off the road?‑‑‑I knew what I was doing. I was, you know - I wasn't - I wasn't that drunk and whatever stoned and I knew what I was doing.
STAVRIANOU DCJ: Sorry?
BURROWS, MS: I was not that drunk.
STAVRIANOU DCJ: Not that drunk or - is that the answer? Not that drunk, Ms Burrows?
BURROWS, MS: That's the answer I heard, sir?‑‑‑Or stoned.
STAVRIANOU DCJ: Sorry?‑‑‑I wasn't that drunk or stoned, you know, I was capable of driving and handling that car.
BURROWS, MS: I would suggest to you, Ms Peters, is that you were too intoxicated to maintain control of that vehicle. What do you say to that?‑‑‑I was distracted like I told you.
You were not distracted, that's a lie. Vivian never touched your arm that day. What do you say about that?‑‑‑She did. She knows that and I know that.
I'm suggesting you drove that car off the road and there was no interference before you did so. What do you say about that?‑‑‑Mm.
And that you were too intoxicated once you had driven that car off the road to be able to control it and get it back on the road?‑‑‑She pulled my arm. She was really drunk and talking to me.
You lied to the police about consuming marijuana?‑‑‑I was just frightened. I was, you know, I wasn't thinking straight. I was still - I was confused, in shock. I had everybody all against me.
You're lying today, Ms Peters, I would suggest to you?‑‑‑I'm not lying. I don't lie (ts 213)
The prosecution case at trial
The prosecution case at trial was that, by reason of the combined effect of alcohol and cannabis, the appellant was intoxicated to such an extent that she was incapable of having proper control of the vehicle. While in that state, the appellant lost control of the vehicle, which left the road and rolled, causing Declan's fatal injury. The State's case was that Ms Bin‑Hitam did not in any way interfere with the appellant's driving immediately before the crash.
The defence case at trial
The defence conceded that the appellant was driving a motor vehicle that was involved in an incident which occasioned the death of Declan.
The defence case was that although the appellant had consumed cannabis and alcohol, she was not under the influence of those substances to such an extent as to be incapable of having proper control of the vehicle. Further, if she was under the influence of drugs and alcohol, Declan's death was in no way attributable to that factor. Rather, the incident was caused by Ms Bin‑Hitam pulling at the appellant's arm, which in turn caused the vehicle to leave the road and overturn.
His Honour's summing up
His Honour summed up the case as it had been argued by the parties. He told the jury that there were potentially two issues to decide. First, whether the prosecution had established beyond reasonable doubt that the appellant was under the influence of alcohol and drugs to such an extent as to be incapable of having proper control of the motor vehicle. If not, the jury were obliged to acquit. If the jury were so satisfied, it had to consider the second issue, namely, whether the appellant had satisfied the jury on the balance of probabilities that Declan's death was not in any way attributable to her being under the influence of drugs and alcohol (ts 234 ‑ 236).
Section 59 and s 59B of the Road Traffic Act
Relevantly to this case, s 59 of the RTA provides:
59. Dangerous driving causing death or grievous bodily harm
(1)If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of, or grievous bodily harm to, another person and the driver was, at the time of the incident, driving the motor vehicle -
(a)while under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle; or
(b)in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person,
the driver commits a crime and is liable to the penalty in subsection (3).
…
(2)For the purposes of this section -
[(a)deleted]
(b)it is immaterial that the death or grievous bodily harm might have been avoided by proper precaution on the part of a person other than the person charged or might have been prevented by proper care or treatment;
Section 59B relevantly provides:
59B. Section 59 and 59A offences, ancillary matters and defence for
(1)For the purposes of sections 59 and 59A, the circumstances in which a motor vehicle is involved in an incident occasioning the death of, or grievous bodily harm or bodily harm to, a person include those in which the death or harm is occasioned through -
(a)the motor vehicle overturning or leaving a road while the person is being conveyed in or on the motor vehicle (whether as a passenger or otherwise); or
…
(5)In any proceeding for an offence against section 59 or 59A a person who had at the time of the alleged offence a blood alcohol content of or above 0.15g of alcohol per 100ml of blood shall be deemed to have been under the influence of alcohol to such an extent as to be incapable of having proper control of a motor vehicle at the time of the alleged offence.
(6)In any proceeding for an offence against section 59 or 59A it is a defence for the person charged to prove that the death, grievous bodily harm or bodily harm occasioned by the incident was not in any way attributable (as relevant) -
(a)to the fact that the person charged was under the influence of alcohol, drugs, or alcohol and drugs; or
(b)to the manner (which expression includes speed) in which the motor vehicle was driven.
I make these observations about the charge laid against the appellant. First, the prosecution did not allege that at the time of the incident which occasioned Declan's death, the appellant drove her vehicle in a manner which was dangerous to the public or to any person (s 59(1)(b) of the RTA). Rather, the State relied upon s 59(1)(a) of the RTA; that is, that the appellant drove the vehicle while under the influence of alcohol and drugs to such an extent that she was incapable of having proper control of the vehicle. Second, Declan's death was occasioned by the appellant's motor vehicle overturning or leaving the road while he was being conveyed as a passenger: s 59B(1)(a) of the RTA. Third, as the appellant's blood alcohol content was less than 0.15 g of alcohol per 100 ml of blood, the State could not rely upon the deeming provision contained in s 59B(5) of the RTA. The prosecution had to prove by evidence, and particularly the expert testimony of Professor Joyce, that the appellant was, at the time of the incident, under the influence of alcohol and drugs to such an extent as to be incapable of having proper control of her vehicle. Fourth, the appellant could not escape criminal liability by arguing that Declan's death could have been avoided by Ms Bin‑Hitam placing Declan in a seatbelt or a child restraint: s 59(2)(b) of the RTA. Fifth, if the jury was satisfied that the State had proved beyond reasonable doubt that the appellant was under the influence of alcohol to the required extent, the appellant sought to discharge the onus in s 59B(6) of the RTA.
The law in relation to s 59 and s 59B of the Road Traffic Act
Section 59 and s 59B were inserted in the RTA by the Road Traffic Amendment (Dangerous Driving) Act 2004 (WA) which came into effect on 1 January 2005. Its statutory history, legislative purpose and effect was described by McLure P in Lodge v Magorian [2012] WASCA 90; (2012) 42 WAR 270 in these terms:
Section 59 and s 59B were inserted in the Act by the Road Traffic Amendment (Dangerous Driving) Act 2004 (WA) (the Amendment Act). Before the Amendment Act came into effect on 1 January 2005, s 59(1) of the Act was confined to what is now s 59(1)(b) and required the State to prove (beyond reasonable doubt) that the dangerous manner of driving caused the death.
The only causal connection the State has to establish under the current provision is that a motor vehicle driven by the accused was involved in an incident that resulted in the death of another person. If the State also proves that, at the time of the incident, the accused was driving the motor vehicle in the condition or manner specified in pars (a) and (b) respectively, the offence of dangerous driving will be established unless the accused establishes that the death was not in any way attributable to (relevantly) his dangerous condition or dangerous manner of driving.
Although the burden is on the accused to establish the lack of any causal connection between his dangerous condition or dangerous manner of driving (as the case may be) and the death, the standard of proof is the balance of probabilities: R v F (1957) SR (NSW) 543; R v Woodward (2001) 33 MVR 536; R v Ganderton (Unreported, NSWCCA, 17 September 1998).
The second reading speech for the Amendment Act explains its background and legislative purpose:
Under Western Australia's Road Traffic Act, as the law presently stands, it is an offence to cause the death of, or grievous bodily harm to, another person by driving a motor vehicle in a manner that is dangerous to the public or to any person. However, in order to be found guilty under section 59, the defendant's driving itself must be viewed objectively and held to be dangerous and there must be some fault on the part of the defendant that caused the danger. Generally speaking, the fact that alcohol or drugs adversely affected the defendant is a relevant circumstance in considering the manner of his or her driving, but is not, of itself, determinative of whether the defendant's driving was dangerous. The proposed amendments to sections 59 and 59A of the Road Traffic Act will overcome the evidentiary difficulties associated with proving that intoxicated drivers who are involved in incidents occasioning death or serious harm can be convicted of dangerous driving.
When death or serious harm is caused by an incident involving a motor vehicle driven by a drunk or intoxicated person, the fact of intoxication will be evidence of dangerous driving and it will be up to the person charged to satisfy the court that the death was not in any way attributable to the fact that he or she was drunk or intoxicated. In other words, a driver who is under the influence of drugs and/or alcohol to such extent as to be incapable of having control of the vehicle and is then involved in an incident that causes death or serious harm will have committed an offence. It will be a defence for that person to prove that the death or serious harm that resulted from the incident was in no way attributable to the fact of that person's intoxication. However, a driver whose blood alcohol content exceeds 0.15 per cent will be deemed to be incapable of having control of a motor vehicle. See Western Australia, Parliamentary Debates, Legislative Assembly, 23 June 2004, 4184b - 4185a (Mr JA McGinty, Attorney General) [12] ‑ [15].
See also The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269.
Elements of an offence contrary to s 59(1)
Having regard to the facts of this case, the elements of an offence under s 59(1)(a) of the RTA are:
(1)the motor vehicle was involved in an incident;
(2)the incident occasioned the death of another person;
(3)at the time of the incident, the accused was driving the motor vehicle; and
(4)at the time of the incident, the appellant was under the influence of alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle.
At trial, the defence did not take issue with the first three elements. Only the fourth element was in dispute. In respect to the third element, it was not part of the defence case that the appellant was not driving the vehicle at the time of the incident which occasioned Declan's death. Further, the appellant did not raise s 23A(2) of the Criminal Code as a defence.
If the State established all of the elements beyond reasonable doubt (and putting to one side the appellant's arguments concerning s 23A(2) of the Criminal Code), the appellant was guilty, unless she established, on the balance of probabilities, that Declan's death was not in any way attributable to the fact that she was under the influence of alcohol and drugs.
The appellant's submissions
The appellant's counsel before this court (who was not the appellant's trial counsel) argued grounds 2 and 3 together. He said that the nub of these grounds was that the appellant was not, at the time of the incident, the driver of the vehicle because the appellant's arm was pulled and 'that distracted [her]'. Counsel conceded that if the appellant was the driver because she maintained control of the vehicle's propulsion '[the] appeal is dead' (appeal ts 22).
Ground 2 - The relevant law
As framed, it is alleged that the learned trial judge erred when he failed to direct the jury as to the defence of 'unwilled act' contained in s 23A(2) of the Criminal Code.
Section 30 of the Criminal Appeals Act 2004 (WA) relevantly provides:
30.Appeal against conviction, decision on
(1)This section applies in the case of an appeal against a conviction by an offender.
(2)Unless under subsection (3) the Court of Appeal allows the appeal, it must dismiss the appeal.
(3)The Court of Appeal must allow the appeal if in its opinion -
(a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or
(b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c)there was a miscarriage of justice.
(4)Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
It cannot be asserted that a judge made a wrong decision on a question of law, unless the matter was ruled upon by the judge at first instance and it is demonstrated that the judge ruled erroneously: Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150 [86] and Gillespie v The State of Western Australia [2013] WASCA 149 [82] ‑ [83]. Accordingly, the only basis upon which ground 2 can succeed is if the appellant establishes that there was a miscarriage of justice as a result of the failure to direct the jury as to the defence of unwilled act.
The appeal was argued on the basis that s 23A(2) of the Criminal Code has not been impliedly excluded by operation of s 59(1) read with s 59B(6) of the RTA. I will assume in the appellant's favour that s 23A(2) has not been excluded. However, I wish to make it clear that I regard the question as open and, as yet, unresolved.
The appellant submitted that s 23A(2) was enlivened because of the appellant's evidence that Ms Bin‑Hitam grabbed her arm and caused her vehicle to leave the road.
Section 23A(2) is in these terms:
(2)A person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will.
The subsection imposes a legal burden on the prosecutor and an evidential burden on the accused.
The test as to whether such a defence should be left to the jury is stated by French CJ, Crennan and Kiefel JJ in Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434:
[I]s there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived [36]?
If the answer to this question is 'yes', the learned trial judge would have been obliged to put the defence under s 23A(2) to the jury, even though the appellant's trial counsel made no mention of it: Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 [18] ‑ [20] (Barwick CJ); Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [83] (McHugh J) and Braysich v The Queen [32] (French CJ, Crennan & Kiefel JJ).
Section 23A(2) is concerned with, relevantly to this appeal, an act which occurs independently of the exercise of the accused's will.
The appellant submitted that the 'cause of the car leaving the road was the unwilled act caused by the front seat passenger pulling at [the appellant's] arm on the steering wheel' (white AB 23 and appeal ts 27). On my reading then, the appellant submits that the relevant act was the act of the appellant driving the car off the road.
The words 'drive' and 'driving' have been considered in many cases in Australia and elsewhere. In some places the word 'drive' is defined by statute and in others it is not. Both words are defined in the RTA.
The verb 'drive' is defined in s 5 of the RTA to mean, relevantly:
drive includes -
(a)in relation to a vehicle, to have control over the steering, movement or propulsion of the vehicle;
'Driver' is relevantly defined in the same section to mean 'any person driving a vehicle'.
Although in common parlance it might be thought that to drive a vehicle means to have control of its steering, the statutory definition of 'drive' is more expansive. It speaks of control over a vehicle's steering, movement or propulsion. The definition is disjunctive; that is, a person drives a vehicle if he or she has control over the steering or movement or propulsion of the vehicle. Thus there may be more than one driver of the same vehicle at the same time, as occurred in the New South Wales case of R v Affleck (1992) 17 MVR 282. There, four men, all of whom had consumed alcohol, were in a small two‑seater utility. H operated the steering and asked the respondent, A, to work the pedals and someone else to operate the gearstick. T apparently took control of the gearstick. The vehicle moved forward about 50 yards. T then engaged the reverse gear. As a result, the vehicle went over a low embankment and rolled on its roof and H died. A was charged with negligent driving. He was acquitted at first instance on the basis that he was not driving the vehicle.
Smart J held that A was driving the vehicle because he had control over the propulsion of the vehicle, even though he did not have control of the steering. His Honour noted several authorities to the effect that a vehicle may have more than one driver and that, in the circumstances of the case, A, the deceased and probably T were all driving the vehicle.
Merits of ground 2
In my opinion, there was insufficient evidence to enliven the defence under s 23A(2) of the Criminal Code.
At its highest, the appellant's evidence was that Ms Bin‑Hitam held the appellant's arm and pulled it at the time the vehicle left the road. In the appellant's opinion, Ms Bin‑Hitam's action caused the vehicle to leave the road.
Whatever Ms Bin‑Hitam did, there was no evidence at all that the appellant did not have, at the time her arm was pulled, the control of the movement and propulsion of the vehicle. She was still, having regard to the statutory definition of the word 'drive', driving the vehicle. Even if she was deprived of the ability to steer, that does not exclude the appellant from being the driver.
Further, in my opinion, the evidence at its highest did not establish that the appellant lost control of the steering. The appellant's evidence was that Ms Bin‑Hitam held the appellant's arm and pulled it. The appellant did not testify as to the force of Ms Bin‑Hitam's action or to the extent of the interference. Specifically as to the latter point, there was no evidence as to whether the appellant lost control of the steering wheel, bearing in mind that the appellant's evidence was not that Ms Bin‑Hitam grabbed the steering wheel or that she lost her grip on the steering wheel. Moreover, the context in which Ms Bin‑Hitam grabbed the arm of the appellant was to get her attention. There was nothing in the appellant's evidence which indicated that Ms Bin‑Hitam was in any sense in control of the steering of the vehicle. As the appellant stated in cross‑examination, Ms Bin‑Hitam's actions were a distraction or, perhaps at their highest, an interference. Whether Ms Bin‑Hitam's actions were a distraction or interference, the appellant still retained control over the steering, movement or propulsion of the vehicle.
In my opinion, the evidence taken at its highest in favour of the accused would not have led a reasonable jury properly instructed to have a reasonable doubt that the elements of s 23A(2) of the Criminal Code have been negatived. Accordingly, there was no basis in law for the defence to be left to the jury. There has been no miscarriage of justice.
Ground 2 fails.
Ground 3
It follows from what I have said in relation to ground 2 that ground 3 has no reasonable prospect of success. His Honour was not required to leave to the jury the issue of whether the appellant was the driver. He was not asked to do so and the issue was conceded by trial counsel. In light of the statutory definition of the word 'drive', that concession was correct: the appellant was driving the vehicle.
The case was properly left to the jury on the basis that it needed to decide beyond reasonable doubt whether the appellant was incapable of driving her vehicle by virtue of the effect of alcohol and drugs. If that question was answered in favour of the prosecutor, the issue became one of whether the appellant had discharged the onus in s 59B(6) of the RTA.
Ground 3 fails.
Conclusion and orders
None of the grounds of appeal have been made out. Accordingly, the appeal must be dismissed.
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