Quine v Keerasawat
[2014] WADC 150
•27 OCTOBER 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: QUINE -v- KEERASAWAT [2014] WADC 150
CORAM: HERRON DCJ
HEARD: 24-26 JUNE 2014
DELIVERED : 27 OCTOBER 2014
FILE NO/S: CIV 1990 of 2012
BETWEEN: CADE JASON QUINE
Plaintiff
AND
KEVEN KEERASAWAT
Defendant
Catchwords:
Motor vehicle accident - Negligence - Damages for person injuries - Unlawful use of a motor vehicle - Plaintiff and defendant jointly engaged in criminal conduct - Whether defendant owed a duty of care to the plaintiff - Offenders (Legal Action) Act 2000 s 5
Legislation:
Criminal Code Amendment Act 2004
Criminal Code s 3, s 7(a), s 8, s 371A, s 378
Criminal Procedure Act 2004 s 3
Evidence Act 1906 s 7
Interpretation Act 1984 s 67(1a)
Offenders (Legal Action) Act 2000 s 5, s 5(1), s 5(2)
Road Traffic Act 1974
Workers' Compensation and Injury Management Act 1981 s 5
Result:
Action dismissed
Representation:
Counsel:
Plaintiff: Mr G Droppert
Defendant: Mr P D Quinlan SC & Ms G L Taylor
Solicitors:
Plaintiff: Donna Percy & Co
Defendant: Tottle Partners
Case(s) referred to in judgment(s):
Austin v The Electricity Networks Corporation [2014] WASCA 89
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473
Heyes v State of Western Australia (2008) 185 A Crim R 390; [2008] WASCA 124
Jones v Dunkel (1959) 101 CLR 298
Luxton v Vines (1952) 85 CLR 352
Miller v Miller (2011) 242 CLR 446
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Pellew v State of Western Australia (2011) 206 A Crim R 593; [2011] WASCA 86
Pickett v Fuderer (Unreported, WASCA, Library No 980475, 27 August 1998)
Ross v The Queen (1979) 141 CLR 432
Transport Industries v Longmuir (1997) 1 VR 125
Trustees of Property of Cummins v Cummins (2006) 227 CLR 278
HERRON DCJ:
Introduction
The plaintiff Cade Jason Quine (Mr Quine) is aged 23 years, his date of birth being 12 November 1990. In the early hours of 2 June 2011, Mr Quine was a passenger in a Ford utility driven by the defendant, Keven Keerasawat in a westerly direction along Terrace Road, Guildford when Mr Keerasawat lost control of the vehicle as he was attempting to drive around a left-hand bend as a result of which the vehicle mounted a median strip, collided with a tree and overturned.
As a result of the accident Mr Quine suffered serious injuries including fractures at the C4 and C5 levels of his spine causing quadriplegia.
Mr Quine and Mr Keerasawat were at the time of the accident friends. Both of them had been drinking alcohol in each other's company and the company of other friends earlier that night and day at a house at Benara Road, Beechboro. Both were significantly intoxicated at the time of the accident.
The car being driven by Mr Keerasawat, in which Mr Quine was a passenger, was stolen. Mr Keerasawat stole the car earlier that night. On 9 June 2011 Mr Keerasawat was charged with stealing a motor vehicle, registered number 1CD 250 the property of Matthew Anthony McKenna contrary to s 371A of the Criminal Code. On 14 October 2011 on his own plea of guilty Mr Keerasawat was convicted of the offence charged of stealing a motor vehicle and placed on a community based order for 12 months.
This is an action for damages arising from the injuries suffered by Mr Quine in the motor vehicle accident based upon Mr Keerasawat's negligent driving.
Mr Keerasawat denies he was negligent in causing the accident. Further, he pleads he did not owe a duty of care to Mr Quine at the time of the accident because both he and Mr Quine were jointly engaged in an illegal enterprise being the illegal use of a motor vehicle in contravention of s 371A of The Criminal Code and further or alternatively that the injury and loss allegedly suffered by Mr Quine were suffered in the course of criminal conduct by Mr Quine being the unlawful use of a motor vehicle which, pursuant to s 5 of the Offenders (Legal Action) Act 2000, is a defence to the action brought by Mr Quine.
It is Mr Quine's case that he did not know the vehicle driven by Mr Keerasawat was stolen and therefore when he got into and remained a passenger in the vehicle he was not committing an offence, was not in the course of criminal conduct and was not jointly engaged in an illegal enterprise with Mr Keerasawat being the illegal use of a motor vehicle.
The issues
The main issue in this trial is whether Mr Quine knew the motor vehicle, the Ford utility, was stolen. Depending upon the answer to that issue, further issues arise as to whether:
(1)the injury or loss suffered by Mr Quine was suffered in the course of criminal conduct by him being unlawful use of a motor vehicle contrary to s 371A of the Criminal Code;
(2)both Mr Quine and Mr Keerasawat were either separately engaged in criminal conduct, being the unlawful use of a motor vehicle, or were jointly engaged in an illegal enterprise, alternatively were jointly committing an offence being the unlawful use of a motor vehicle contrary to s 371A of the Criminal Code;
(3)if they were both committing an offence of unlawful use of a motor vehicle, whether at common law the defendant, Mr Keerasawat, owed a duty of care as the driver of the vehicle to Mr Quine as the passenger in the vehicle;
(4)the injury or loss suffered by Mr Quine was suffered in the course of criminal conduct by him being unlawful use of a motor vehicle contrary to s 371A of The Criminal Code so as to constitute a complete defence to the action pursuant to s 5(1) of the Offenders (Legal Action) Act;
(5)if so, whether by s 5(2)(b) of the Act the injury or loss suffered by Mr Quine arose from circumstances which were entirely separate from those to which he was exposed by reason of being engaged in the criminal conduct and to which he was exposed in common with other persons who were not engaged in the criminal conduct.
It is not in issue that if s 5(1) of the Offenders (Legal Action) Act does not apply and if Mr Quine and Mr Keerasawat were not jointly engaged in an illegal enterprise or were not jointly committing an offence, Mr Keerasawat owed a duty of care to Mr Quine but, as Mr Keerasawat in his defence denies he was negligent in causing the accident, if I find neither of the above defences are made out I am required to determine whether Mr Keerasawat breached his duty of care to Mr Quine by his manner of driving in causing the motor vehicle accident.
If I were to find the defendant has not made out either of the defences to the action and I found Mr Keerasawat was negligent in causing the accident and the injuries suffered by Mr Quine the parties have agreed the apportionment of liability between each of them on the basis Mr Quine was contributorily negligent to the extent of 20%.
Neither is it in issue the defendant bears the onus of proof of establishing on the balance of probability each of the pleaded defences to Mr Quine's action.
The circumstances leading up to the accident
The plaintiff Mr Quine
Mr Quine has no recollection of the accident or of being in the car driven by Mr Keerasawat. He said his last recollection was drinking alcohol with friends Tim Rasmussen, Scott Appollo‑Enwood, Emily Sampey and Mr Keerasawat at Ms Sampey's house in Benara Road, Beechboro. He recalls being driven to and dropped off at Ms Sampey's house by his girlfriend's sister during the day. They picked up Mr Keerasawat on the way and drove him to the party at Ms Sampey's house. He remembers the first few drinks he had but nothing afterwards until he later woke up in hospital. Mr Quine said he did not know what had happened to him until he was told afterwards.
He and Mr Keerasawat had been friends with each other since being at school together. They were close mates.
He said both he and Mr Keerasawat were 'graffas' by which he meant they would spray graffiti on buildings. He wore normal clothes and latex gloves when he went graffiting.
He said neither he nor Mr Keerasawat held a driver's licence although he had a scooter licence. He agreed he had a record for driving without a licence. He said Mr Keerasawat owned a car.
He also agreed he had a conviction for stealing a motor vehicle which he said came about because he agreed to take the rap for a friend who had been caught stealing a motor vehicle.
He denied he was ever involved in stealing vehicles or that he knew Mr Keerasawat had been involved in stealing vehicles or convicted of stealing vehicles but agreed he mixed with a crowd which stole cars.
He had been a passenger in a car driven by Mr Keerasawat before the day of the accident.
Emily Sampey
At the time of the accident Ms Sampey was in a relationship with Tim Rasmussen and they lived together at her mother's home in Benara Road, Beechboro. She was born on 26 June 1996 and was therefore only aged 14 years, nearly 15 years, at the time. Both Mr Quine and Mr Keerasawat were friends with Mr Rasmussen but she had only met them once or twice before. When she arrived home that day Mr Rasmussen, Mr Quine and Mr Keerasawat together with Mr Apollo‑Enwood were drinking together in the shed in the back yard. She thought they were mostly drinking beer. She spent some time with them drinking alcohol but went back and forth between the shed and the home. She said they were drinking a lot of alcohol. They were stumbling and slurring their words. She was not much of a drinker and was quite young and was not drunk that night.
During the night she recalled Mr Quine was leaning up against a car in the driveway. The only cars were her mother's and her sister's. Mr Quine was drunk. Later that night, quite late into the night, she saw Mr Keerasawat sitting in a car parked across the driveway. It was a white ute. She remembered Mr Quine saying he was going with Mr Keerasawat and she asked him to come back because she did not think it was a good idea leaving because of the amount of alcohol he had drunk.
She had not seen the white ute until just before the end of the night when Mr Quine got into it. It looked new. She did not see Mr Keerasawat get out of the car. He stayed sitting in the ute.
She did not remember Mr Rasmussen saying to Mr Quine 'he shouldnt go because the car was stolen'. She remembered Mr Rasmussen saying 'you shouldnt go because you were drunk'.
She could not remember any talk that night of intending to become involved in graffiti activity.
She did not know how Mr Quine or Mr Keerasawat got to her house earlier.
Scott Appollo‑Enwood
Mr Appollo‑Enwood was a friend of Mr Rasmussen. He lived with his mother nearby. He was also friends with Mr Quine and Mr Keerasawat.
He took a bottle of spirits with him to the house and they drank alcohol and played games and listened to music in the shed and the back yard. Mr Quine turned up after he, that is, Mr Rasmussen arrived. He thought Mr Keerasawat had arrived at the house before Mr Quine and that they did not arrive together, but did not know as he was in the shed.
Mr Rasmussen said he drank quite a bit that day and night. He was trying to keep up with Mr Quine who was drinking more than he was. Mr Quine was staggering and was pretty intoxicated.
He recalled that at one stage, when it was dark, Mr Keerasawat took off for a bit. He did not say much, just that he would be back in a minute, he was going to get some smokes or drinks. He denied that when Mr Keerasawat left he said anything about finding a car to steal to go joyriding in.
They continued drinking while Mr Keerasawat was away.
When he later returned Mr Keerasawat came into the shed and said he had got his uncle's ute and did they want to go out. He said no he did not want to. He was not sure what Mr Quine said but they were talking together and after a while Mr Quine went off with Mr Keerasawat.
He did not go out to see the car Mr Keerasawat said he had, he stayed in or came back into the shed from the backyard. He could not recall who else was present when he said Mr Keerasawat said he had got his uncle's ute.
He said it was a pretty heavy session, at least six or seven hours of drinking.
He was aware that both Mr Quine and Mr Keerasawat did graffiti work and wore jumpers and hoods and gloves to keep the paint off them. They did not say where they were going or what they were going to do but he assumed that when they left they had gone off to do some graffiti work.
He agreed that because of the amount of alcohol he drunk that night his memory was patchy and hazy.
Timothy James Rasmussen
Mr Rasmussen was called by the defendant. He gave evidence via video link from Hakea Prison where he was on remand.
In June 2011, Mr Rasmussen was living at 269 Benara Road, Beechboro with his fiancé, Ms Sampey, and her mother, Ms Walters. He recalled that on the night Mr Quine and Mr Keerasawat were involved in a motor vehicle accident, he had been drinking at the Beechboro house with both Mr Keerasawat and Mr Quine, and also with Mr Enwood and Ms Sampey. He said he, Mr Quine and Mr Keerasawat walked from Mr Enwood's house to the Beechboro house in which he was living with Ms Sampey and her mother.
He had known Mr Keerasawat for a few years since they had been at high school together. He had also known Mr Quine for a while, through Mr Quine's older brother.
They were drinking outside under the back patio near the carport over a few hours. During the night, Mr Keerasawat left and then came back and Mr Quine then left with him. Before he initially left Mr Keerasawat said he was going for a walk to go and get a car. When Mr Keerasawat said that, Mr Rasmussen, Ms Sampey, Mr Quine and Mr Enwood were present and loud music was playing.
Mr Keerasawat came back in a ute. He was gone for about one to one and a half hours. Mr Rasmussen saw the ute. He had not seen it before. It was on the road at the front of the house with Mr Keeraswat sitting in it. Mr Rasmussen walked out to the front of the house with Ms Sampsey and Mr Quine. Mr Quine jumped into the ute. Before he did so, Mr Rasmussen and Ms Sampsey told him not to go and to stay with them because he had been drinking and he wanted to continue drinking with him. However, Mr Quine just jumped into the ute.
He agreed that it had been a heavy drinking session and he had had a lot to drink, that he was quite intoxicated and he could only vaguely remember bits and pieces. He also agreed loud music was playing and they had been asked by Ms Walters to quieten things down.
The accident
Susanna Hopkins
In June 2011 Ms Hopkins was living at 72 Terrace Road in Guildford. Her house was on the northern side of Terrace Road, near some tennis courts. It is the second house to the west of the tennis courts and just after a bend in Terrace Road. In June 2011, she had been living in that house for nearly two years.
While she was in her bedroom downstairs in the early hours of 2 June 2011 she heard a screeching of tyres and then two big bangs as if something had been badly hit and then what she described as a massive crash. She immediately went upstairs to the road or ground level and went outside. She saw a white ute facing her house. The ute was on its side and badly damaged. A tree had been knocked over and she could see the stump of another tree. There was smoke coming from the car.
From photographs taken later at the scene by police, she identified her house in the background with a white picket fence which is from where she saw the car. She came through the gate and fence. The ute was lying on its passenger side with its front pointing in a easterly direction. The car was lying on its passenger side on the median strip.
Ms Hopkins saw a male climbing out of the ute from the driver's side and then run away. She called out to him to wait but he kept running. As one of her sons went back inside their home to telephone emergency services, she walked over to the car and saw another male inside. Although she attempted to speak with him, she could only hear him making a wheezing sound. He was on the passenger side of the ute on the ground. She was unable to get any other response from the passenger.
Eventually the police, ambulance and fire brigade arrived and the passenger was cut from the car. Ms Hopkins observed him being lifted from the car and placed on a stretcher on wheels. She described him as being like a rag doll. She observed gloves on both his hands which she described as the type of gloves you wear when preparing food. She saw his arms flop to the side of the stretcher which is when she saw the gloves. They were skin coloured.
Samuel Mark Hopkins
By consent, a statement of Samuel Hopkins dated 5 June 2011 was tendered. Mr Hopkins is Ms Hopkins' son. At the time of the accident he was 17 years of age.
In his statement he said that at about midnight on 1 June 2011 he went to bed. He was woken by a noise coming from the front of his house. After he went outside to the front of the house he saw a utility on its side in the middle of the median strip. He was present when police arrived and when fire brigade officers cut the passenger from the vehicle. He saw the male was wearing gloves on his hands which he said had no real colour to them.
Debra Ritchie
Ms Ritchie is a senior constable stationed at the Bayswater Police Station. In June 2011, she was stationed at Midland Police Station. She attended the scene of the accident with First Class Constable Dawe. She said the accident was in the vicinity of 72 Terrace Road in Guildford.
She saw a vehicle on its side in the median strip of the road and saw a male person lying inside the vehicle on the passenger side. He was moaning.
She recalled he had a pair of latex gloves on his hands which were purple in colour. She saw St Johns Ambulance personnel take the male out of the vehicle.
Simon Dawe
Mr Dawe is a first class constable based at the Midland Police Station, where he was based in June 2011. He attended the scene of the accident with the now Senior Constable Ritchie.
He saw a ute on its side in the centre median. He and Senior Constable Ritchie were the first emergency vehicle at the scene. He saw a male person in the passenger side of the vehicle who was unconscious. He could not get the person to acknowledge him. As he leant in to the car he noticed the person was wearing rubber latex type gloves.
Jacqueline Quine
Mrs Quine is Mr Quine's mother. She was contacted after the accident and told her son was being taken to Royal Perth Hospital to be treated for the injuries suffered in the motor vehicle accident. His jacket, jeans and a ring were later given to her by the hospital. She said that both Mr Quine and her other son Robert had engaged in graffiti activity, that is, they used cans of spray paint to paint graffiti on buildings. She said she thought they went to a bridge in the Beechboro area to spray graffiti.
Emily Sampey
After the accident Ms Sampey received a telephone call from Mr Keerasawat asking for someone to pick him up from Midland because he had been involved in a car accident. Ms Sampey and her mother Anita Walters, with Mr Rasmussen, drove out to Midland to pick up Mr Keerasawat. They picked him up near a butcher's shop which was not far from the police station. Ms Walters drove. Mr Keerasawat said to them he had been involved in a car accident and he was scared he might have hurt Mr Quine. He told them that as they were driving past Guildford Grammar he looked down at his phone to check a message and lost control of the car.
Anita Walters
Ms Walters is Emily's mother. Ms Walters gave similar evidence to Ms Sampey. She arrived home after work at about 6.30 pm on 1 June. Mr Quine was at her home when she arrived. She showered and changed and went out for dinner that night. She said she was due to start work at about one o'clock the next day when Mr Rasmussen came and told her Mr Keerasawat had telephoned and been questioned by police in relation to a car accident that he and Mr Quine were involved in. Ms Walters then drove them to Midland near Avon Valley Beef opposite the police centre in Midland and picked up Mr Keerasawat. When he was in the car he told them he had been in an accident with Mr Quine. He said that as he was coming back through Guildford something happened on his phone and he went to answer it and missed the bend and hit some trees. He got out and tried to wake Mr Quine but Mr Quine did not respond. He panicked and then ran off but later came back and waited.
Was the utility stolen?
By consent a statement of Matthew Anthony McKenna dated 3 June 2011 was tendered.
He said Alion Pty Ltd provided a white Ford Falcon utility registration number 1DEU 250 for his use. It was purchased by Alion on 3 November 2009. At about 6.00 pm on Tuesday, 31 May 2011, he drove the Ford utility to his house at 18 Doriot Way, Carine and parked it on the driveway at the front of his house next to his wife's car. He locked the vehicle and left the keys on a table in the hallway of his house.
At about 6.00 am the next morning on 1 June 2011, he saw the door from the hallway to the garage was ajar and that the keys to his car were gone. His computer which he had left in his lounge room was also missing. Both his vehicle and his wife's vehicle next to which he had parked his vehicle the previous night were missing. He immediately contacted police who later attended at his house and interviewed him. The next day he was informed by police that his vehicle was involved in a motor vehicle accident. On 3 June he viewed several photographs of the vehicle involved in a crash which he identified as his vehicle.
As I have earlier noted, Mr Keerasawat was later charged with stealing the motor vehicle contrary to s 371A of the Criminal Code and on 14 October 2011 on his own plea of guilty was convicted of the offence charged. There is no issue between the parties that Mr Keerasawat stole the Ford utility which he was unlawfully using at the time of the accident.
I find Mr McKenna's Ford utility was stolen during the night of 31 May or the early hours of the morning on 1 June 2011 by an unknown person. At the time of the accident in the early hours on 2 June 2011 when the vehicle was being driven by Mr Keerasawat it had been stolen by him.
Agreed facts
The parties have agreed that after the accident no spray cans or paint were found in the motor vehicle driven by Mr Keerasawat.
Counsel for Mr Quine also agrees that no Jones v Dunkel (1959) 101 CLR 298 adverse inference should be drawn because the defendant Mr Keerasawat was not called to give evidence. I was informed by senior counsel for Mr Keerasawat that he had been subpoenaed to attend the court to give evidence and was available for either party to call but neither party chose to call him to give evidence. Although by s 7 of the Evidence Act 1906 a party to a civil proceeding is competent and compellable to give evidence on behalf of the other party to the proceeding it is unusual for an opposing party to be called as witness in the other party's case.
Onus and standard of proof
I have previously noted it is not in issue the defendant bears the onus of proof of establishing each of the pleaded defences to Mr Quine's action.
The standard of proof is the balance of probabilities, having regard to the principles described in Briginshaw v Briginshaw (1938) 60 CLR 336: Austin v The Electricity Networks Corporation [2014] WASCA 89 [28].
Those principles, however, do not affect the standard of proof and must be understood as explained by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 per Mason CJ, Brennan, Deane & Gaudron JJ 170 ‑ 171.
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
According to the principle in Briginshaw v Briginshaw when in a civil proceeding a question arises whether a crime has been committed the standard of proof is the same as upon other civil issues but weight is given to the presumption of innocence and exactness of proof is expected.
In Trustees of Property of Cummins v Cummins (2006) 227 CLR 278 [34], the High Court unanimously expressed the test (in a case of determining whether the main purpose of transactions in a bankruptcy case was to defeat creditors) as requiring that:
… the circumstances appearing in the evidence gave rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability ...
Further, the High Court noted with apparent approval the acceptance by the appellants that:
… in determining the inferences to be drawn from the primary facts, regard was to be had to the seriousness of the allegations made against [the person the subject of the adverse findings] and the gravity of the consequences of findings adverse to him.
See also Luxton v Vines (1952) 85 CLR 352, 358.
In summary, the defendant must prove on the balance of probabilities the plaintiff committed an offence of unlawful use of a motor vehicle contrary to s 371A of the Criminal Code and that the plaintiff and the defendant were together engaged in a joint illegal enterprise. In deciding whether a crime has been committed I should feel an actual persuasion of its occurrence and such a conclusion should not be reached without the exercise of caution and unless the evidence survives careful scrutiny and appears precise and not loose and inexact: Briginshaw v Briginshaw (361 – 363, 368) (Dixon J). I should not draw an inference adverse to the plaintiff unless I accept that the circumstances give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability, the plaintiff committed a criminal offence.
Section 371A Criminal Code
Section 371A of the Criminal Code provides:
(1)A person who unlawfully —
(a)uses a motor vehicle; or
(b)takes a motor vehicle for the purposes of using it; or
(c)drives or otherwise assumes control of a motor vehicle,
without the consent of the owner or the person in charge of that motor vehicle, is said to steal that motor vehicle.
(2)This section has effect in addition to section 371 and does not prevent section 371 from applying to motor vehicles.
It is not in issue that it was Mr Keerasawat who took the motor vehicle and drove or was in control of the motor vehicle at the relevant time.
There is no evidence the plaintiff Mr Quine took the motor vehicle for the purpose of using it or drove or assumed control of the motor vehicle contrary to pars (1)(b) or (c). Therefore, in determining whether or not Mr Quine committed an offence contrary to s 371A it is necessary to determine whether he unlawfully used the motor vehicle contrary to s 371A(1)(a).
The offence of unlawfully using a motor vehicle contrary to s 371A(1)(a) is committed when a person uses the motor vehicle without the consent of the owner and where the use is not authorised, justified or excused by law. The act of being a passenger in a vehicle constitutes 'use' of the vehicle within the meaning of s 371A – Pickett v Fuderer (Unreported, WASCA, Library No 980475, 27 August 1998), 3 (Ipp J). Relevantly, the defendant must prove that when Mr Quine used the vehicle by being a passenger in the vehicle he knew the vehicle to have been stolen when it was being driven, and he was a passenger in the vehicle, i.e. it was being driven, without the consent of the owner. The defendant bears the onus of proving Mr Quine was a passenger in the vehicle knowing it to have been stolen.
If Mr Quine was a passenger in the vehicle knowing it to have been stolen, that is, knowing it was being used or driven without the consent of the owner, he is a principal offender pursuant to s 7(a) of the Criminal Code. He may also, pursuant to s 8 of the Criminal Code, be deemed to have committed the offence if when he got into the vehicle he formed a common intention with Mr Keerasawat to prosecute an unlawful purpose in conjunction with one another of unlawfully using the vehicle and in the prosecution of such a purpose another offence was committed such that its commission was a probable consequence of the prosecution of the unlawful purpose. Relevantly, the other offence which is alleged to have been committed is reckless or dangerous driving by the defendant Mr Keerasawat.
Did Mr Quine know the vehicle was stolen?
As I earlier noted Mr Quine gave evidence he has no recollection of the accident or of being in the car driven by Mr Keerasawat. I accept Mr Quine has no relevant recollection. It was not disputed by the defendant.
Nor, as I have also noted, did Mr Keerasawat give evidence. There is therefore no direct evidence as to what was Mr Quine's state of knowledge at the relevant time, that is, when he got into and was a passenger in the vehicle immediately before the crash.
Therefore, in determining what was Mr Quine's state of knowledge I am required to draw an inference from all of the surrounding facts and circumstances I find to be established.
In a criminal trial an inference can only be drawn against an accused person if it is the only inference reasonably open on all of the facts and circumstances. If an inference can be reasonably drawn consistent with the innocence of an accused person that inference must be drawn. However, in a civil trial I must, having regard to the principles in Briginshaw and Cummins as I have earlier explained, be reasonably satisfied having examined all of the evidence with care and caution, that an inference adverse to Mr Quine should be drawn. The inference need not be the only reasonable inference for that conclusion to be reached. It is enough that it is the mostly likely or definite inference open.
In Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5 the High Court explained the civil standard of proof in a circumstantial case as follows:
But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstancial [sic] evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.
Bradshaw v McEwans Pty Ltd was applied in Transport Industries v Longmuir (1997) 1 VR 125, 141.
The defendant concedes his case that Mr Quine knew the vehicle was stolen, that is that he was a passenger in the vehicle without the consent of the owner, is a circumstantial case. In a circumstantial case it is important that all of the facts and circumstances be considered together as a whole and those facts from which I am asked to draw an inference adverse to Mr Quine not be considered in isolation: Transport Industries v Longmuir per Winneke P (128 – 129) and Tadgell JA (141).
Counsel for Mr Quine submits that it is not reasonably open to draw the inference that Mr Quine knew that when he got into the vehicle and was a passenger, it was being used without the consent of the owner, that is, that it was stolen. In particular counsel points to the evidence of Mr Enwood that when Mr Keerasawat left the house earlier that night he said he would be back in a minute, he was just going to get some smokes or drinks. When Mr Keerasawat arrived later he came into the shed and said that he had got his uncle's ute and did they want to come with him. Mr Quine then went off with Mr Keerasawat. Mr Enwood did not go and see the car that Mr Keerasawat said he had and he stayed in the shed when Mr Keerasawat and the others went to the front of the house.
I reject Mr Enwood's evidence that when Mr Keerasawat came back with the ute he came into the shed where the others were still drinking and told them he had his uncle's ute and asked whether anyone wanted to come with him. That evidence is contrary to the evidence of Ms Sampey and Mr Rasmussen, both of whom said Mr Keerasawat remained in the ute which was parked on the road in front of the house and Mr Quine, Ms Sampey and Mr Rasmussen walked to the front of the house. Ms Sampey and Mr Rasmussen tried to talk Mr Quine out of getting into the ute because of his intoxicated condition. On his own evidence Mr Enwood agreed that because of the amount he had drunk that night he was very drunk and his memory was patchy and hazy. I therefore find his evidence is unreliable, whereas Ms Sampey was not significantly affected by alcohol and her memory and evidence of what occurred that night is generally reliable.
I find that when Mr Keerasawat returned to the house later that night with the ute he remained at the front of the house in or with the ute. He did not come into the shed. Nor did he say he had got his uncle's ute.
Findings
I make the following findings.
1.The plaintiff and the defendant were close friends and had known each other for years.
2.The plaintiff did not have a driver's licence. He also knew that the defendant did not have a driver's licence.
3.Despite not having a driver's licence Mr Quine had driven in the past without a licence.
4.He knew Mr Keerasawat had driven a motor vehicle when he did not have a driver's licence.
5.Mr Quine had a record of driving without a driver's licence. Mr Keerasawat also had a record of driving without a driver's licence.
6.Mr Quine had been a passenger in a car driven by Mr Keerasawat before the crash.
7.Mr Quine mixed with a crowd that stole vehicles.
8.Mr Quine had a record for stealing cars. Mr Quine said his conviction for stealing a car was because he took the rap for a friend who he knew was stealing a car.
9.Therefore Mr Quine had demonstrated a preparedness to commit or be involved in the commission of driving offences.
10.While each of Mr Quine and Mr Keerasawat were at 269 Benara Road Beechboro neither of them had a car. Mr Quine was driven to the Benara Road house by his girlfriend's sister and they picked up Mr Keerasawat on the way and took him to the house.
11.Mr Quine and Mr Keerasawat had been drinking together for a considerable period that day and into the night. When Mr Keerasawat initially left the house it was late at night.
12.I accept Mr Rasmussen's evidence that as Mr Keerasawat was leaving Mr Keerasawat said he was going for a walk to go and get a car. When he said that Mr Quine was present and probably heard what was said.
13.Mr Keerasawat was gone for 1 to 1 1/2 hours.
14.When Mr Keerasawat later returned to the house with the vehicle no‑one had seen the vehicle before.
15.The vehicle was a white Ford utility which according to Ms Sampey looked like a new model in good condition.
16.Mr Keerasawat parked the ute at the front of the house across the driveway. He remained sitting in the ute. He did not come into the back of the house where Mr Quine and the others had remained, drinking, after he left.
17.I reject Mr Enwood's evidence that after Mr Keerasawat returned with the ute he came into the shed in the backyard and said he had got his Uncle's ute.
18.After he returned in the ute, and while he remained sitting in the ute, Mr Quine, Mr Rasmussen and Ms Sampey walked to the front of the house to the ute.
19.Ms Sampey and Mr Rasmussen attempted to dissuade Mr Quine from getting into the ute with Mr Keerasawat because of his, Mr Quine's intoxicated condition.
20.Mr Quine ignored their entreaties and got into the ute with Mr Keerasawat driving.
21.The utility was stolen by Mr Keerasawat. It was owned by Mr McKenna. It was purchased in 2009.
22.Mr Keerasawat lost control of the utility as he was driving around a left‑hand bend in a westerly direction on Terrace Road in Guildford when he was distracted by looking at his mobile phone as a result of which the vehicle veered onto a median strip and crashed into a tree.
23.Mr Keerasawat was intoxicated when he was driving.
I also accept the essentially unchallenged evidence of the witnesses present at the scene of the crash, Ms Hopkins, her son Samuel Hopkins and the two attending police officers, Senior Constable Ritchie and First Class Constable Dawe, that Mr Quine was wearing latex skin coloured gloves when he was taken out of the badly damaged vehicle. No spray cans or paint were found in the vehicle driven by Mr Keerasawat.
Counsel for Mr Quine submits the fact Mr Quine was wearing latex gloves at the time of the crash is equally as consistent with Mr Quine and Mr Keerasawat going out spray painting, which is what Mr Rasmussen said he assumed they were going to do because he was aware that when they did graffiti work they wore jumpers and hoods and gloves to keep the paint off them, as with Mr Quine not wanting to leave fingerprints in the vehicle because he knew it was stolen. Mr Quine said when he went graffiting he wore latex gloves.
There is no evidence Mr Keerasawat was wearing gloves at the time of the crash or when he was driving the vehicle. Nor is there any direct evidence that Mr Quine and Mr Keerasawat had been involved in spray painting that night before the crash. There is no evidence of any discussion earlier in the night at the Benara Road house about spray painting activities. Although in cross‑examination Mr Quine denied the reason for wearing the gloves was so that he would not leave fingerprints in the vehicle he knew to be stolen, he did not have any memory of being in the vehicle or wearing gloves and his denial therefore cannot be given any weight.
I reject counsel's submission that the fact Mr Quine was wearing latex gloves gives rise to conflicting inferences of equal probability, either that Mr Quine and Mr Keerasawat had been spray painting earlier that night or that Mr Quine knew the vehicle was stolen. From the fact Mr Quine was wearing latex gloves, considered together with all of the other facts and circumstances I have set out above I am satisfied the inference can be reasonably drawn that Mr Quine was wearing the gloves for the purpose of not leaving his fingerprints behind in the vehicle he knew to be stolen. In my view the most likely inference is that Mr Quine was wearing latex gloves because he knew the vehicle was stolen and did not want to leave his fingerprints inside the ute.
Counsel for Mr Quine also submits Mr Keerasawat lived relatively close to the Benara Road house and there was no evidence that his uncle was not living with him at around the time the incident occurred. It is submitted there was no evidence that his uncle did not have a light coloured ute. It is further submitted that whilst the evidence established that Mr Keerasawat did not take his uncle's ute, at the time it was neither probable that it was not his uncle's utility nor was it implausible that it was his uncle's vehicle.
I reject that submission. Other than Mr Enwood's evidence that when Mr Keerasawat returned to the house he said he had got his uncle's ute, which evidence I have rejected, there is no evidence Mr Keerasawat had an uncle or that he had an uncle who owned a ute. In my view it is implausible that the vehicle was Mr Keerasawat's uncle's. Mr Quine knew Mr Keerasawat was unlicensed to drive, knew the ute was new, knew Mr Keerasawat did not have any lawful means of obtaining the ute, especially at that time of the night, and that Mr Keerasawat did not have permission to drive it. When Mr Quine was driven to the Benara Road house earlier that day by his girlfriend's sister they picked up Mr Keerasawat and drove him to the house. He and Mr Keerasawat, with the others, had been drinking heavily over a number of hours and both of them were intoxicated. His level of intoxication would have been easily observable such that an owner of a vehicle would not have given him permission to drive the utility, especially following an unexpected request late at night.
Given all of those matters, and my earlier findings and given the time of the night when Mr Keerasawat left and later returned to the house, it is inherently unlikely Mr Quine believed Mr Keerasawat lawfully obtained the motor vehicle and had permission to drive it. In my view the only reasonable reference open on all of the facts and circumstances is that when Mr Keerasawat returned to the Benara Road house with the ute Mr Quine knew the ute was being driven by Mr Keerasawat without the consent of the owner. He knew the ute was stolen. His intention was to go joyriding with Mr Keerasawat in the stolen utility. From all of the evidence, and the factual findings I have made, there are no conflicting inferences of equal probability which are reasonably open to be drawn.
I also find that at some time after he got into the ute that night Mr Quine put latex gloves on for the purpose of ensuring his fingerprints were not left in the ute. I am satisfied the reason he did not want to leave his fingerprints in the ute was because he knew it was stolen and was being used without permission. I do not accept Mr Quine was wearing gloves because he and Mr Keerasawat, had, before the crash, been spray painting graffiti.
It follows from those findings that I am satisfied that at the time of the crash Mr Quine was a passenger in the vehicle knowing it to have been stolen and was therefore unlawfully using the vehicle contrary to s 371A of the Criminal Code. He was a principal offender pursuant to s 7(a) of the Criminal Code.
Having made that finding it is next necessary to consider whether the defendant owed a duty of care to the plaintiff in circumstances in which they were both committing a criminal offence. Further, it is necessary to consider whether by s 5 of the Offenders (Legal Action) Act the plaintiff's action for damages for injury and loss is defeated.
Duty of care
The test for whether a defendant owes the plaintiff a duty of care at common law in circumstances in which the parties are acting illegally was explained in Miller v Miller (2011) 242 CLR 446.
The facts of that case are that the appellant, who was then aged 16 years, decided to steal a car in the city to drive to her home. Having started a car in the car park she asked her older sister to drive her and a cousin home. The respondent, aged 27 years, was an uncle of the appellant and when he saw the car leaving the car park he said he would drive the car. He then got into the driver's seat and took the wheel. Other passengers also got into the car. In total there were nine passengers while the respondent was driving. After a while the respondent began speeding and driving through red lights. The appellant asked him to slow down and then asked him to stop and let her and her sister out but the respondent kept on driving in a dangerous manner. As he was speeding he lost control of the car which hit a pole causing serious injuries to the appellant.
The majority, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ [5] posed the question: 'Does her theft of the car, or her subsequent use of the car (or some combination of both her theft and her use of the car), defeat her claim for damages for negligence?' Their Honours said [16]:
Second, and more fundamentally, the issue that is presented by observing that a plaintiff was acting illegally when injured as a result of the defendant's negligence is whether there is some relevant intersection between the law that made the plaintiff's conduct unlawful and the legal principles that determine whether the plaintiff should have a cause of action for negligence against the defendant …
Their Honours said [18]:
The fact that a plaintiff was acting contrary to law when he or she suffered damage of which the defendant's negligence is alleged to be a cause does not automatically preclude the plaintiff from recovering damages from the defendant. Pollock wrote, in 1887, that although '[l]anguage is to be met with in some books to the effect that a man cannot sue for any injury suffered by him at a time when he is himself a wrong-doer ... there is no such general rule of law.' Rather, Pollock offered the view that:
'[i]t does not appear on the whole that a plaintiff is disabled from recovering by reason of being himself a wrong-doer, unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction: and even then it is difficult to find a case where it is necessary to assume any special rule of this kind.' (emphasis added)
Miller v Miller was decided on the basis the relationship between the parties was that they were joint participants in an illegal act and that by s 8 of the Criminal Code each of the appellant and the respondent had formed a common intention to prosecute an unlawful purpose, the unlawful purpose being the unlawful use of a motor vehicle contrary to s 371A of the Criminal Code and in the prosecution of that unlawful purpose, an offence, namely dangerous driving or driving under the influence of alcohol was committed which was of such a nature that its commission was a probable consequence of the prosecution of the common unlawful purpose. Ultimately the appellant succeeded on the basis that she had withdrawn from the common unlawful purpose pursuant to s 8(2) of the Code prior to the crash and was therefore not responsible for the offence which was subsequently committed, that is, the offence of dangerous driving.
It should be noted Miller v Miller did not consider the illegal conduct on the basis the appellant was a s 7 principal offender, however, in my view the test as to whether a duty of care is owed by one person to another when both are jointly engaged in illegal activity, as explained by the High Court, is not any different whether the participants are s 7 or s 8 offenders. It should also be noted that in that case the respondent driver was charged with and pleaded guilty not just to unlawful use of a motor vehicle but also to other offences arising out of his use of the car that night including dangerous driving causing death and grievous bodily harm and driving under the influence of alcohol, unlike Mr Keerasawat who has only been charged and convicted of unlawful use of a motor vehicle contrary to s 371A: Miller v Miller [75].
Having examined the legislative history of s 371A, and concluded the section not only reflected a rise in the incidence of illegal use of motor cars but also a recognition of the dangers to life and limb that often attended the commission of that crime and recognising that those who unlawfully take and use vehicles show a corresponding lack of responsibility for the safety of the vehicle involved and the inevitable desire to avoid detection, the majority said [93]:
If, in a particular case, it were to be shown that a probable consequence of commission of an offence of taking or using a vehicle illegally was the commission of other driving offences (including reckless or dangerous driving) those who were complicit in the initial offence would be criminally liable for the subsequent offences as well. More particularly, if, as here, the driver of the illegally used vehicle drove dangerously, and driving in that manner was a probable consequence of the prosecution of the joint illegal purpose, a person complicit in the crime of illegal use would also be complicit in the offence of driving dangerously. And if, as a result of the dangerous driving, the complicit passenger were injured, it would evidently be incongruous to decide that the offender who drove the vehicle owed that passenger a duty to drive with reasonable care. The passenger would have committed the offence of dangerous driving and yet, if the driver owed the passenger a duty to take reasonable care, the passenger (who would be criminally responsible for the driver's dangerous driving) might sue the driver for damages for driving negligently.
In relation to whether a duty of care will arise in circumstances where an offence is committed in breach of s 371A the majority said as follows [99] – [102]:
[99][T]he relevant legislative purposes of s 371A are completely stated as being the protection of property interests and the promotion of road safety. A purpose described only as the promotion of road safety may well be said not to affect whether a duty of care should be found. But the statutory purposes of s 371A are more particular than a general concern with road safety. The section proscribes and punishes the taking and use of a vehicle illegally as it does because it recognises that, in a case where two or more persons form a common intention to prosecute that unlawful purpose, it is often a probable consequence of the commission of the crime that the driver will drive recklessly or dangerously.
[100]Whether one participant should be held to owe the other a duty to take reasonable care in the performance of the common purpose of using the car illegally cannot depend upon whether the possibility of reckless or dangerous driving eventuates. It would be absurd to hold that one owed the other a duty to take reasonable care unless and until he or she departed markedly from observing that standard of care.
[101]The refusal to find a duty of care between those complicit in the offence follows from the more precise identification of the way in which the statutory proscription of illegal use of a vehicle seeks to promote road safety. The offence of illegally taking and using a vehicle is dealt with as it is because of its association with reckless and dangerous driving. The statutory purpose of a law proscribing dangerous or reckless driving is not consistent with one offender owing a co-offender a duty to take reasonable care. And in a case where two or more are complicit in the offence of illegally using a vehicle, the statutory purpose of the law proscribing illegal use (here, s 371A) is not consistent with one offender owing a co-offender a duty to take reasonable care. The inconsistency or incongruity arises regardless of whether reckless or dangerous driving eventuates. It arises from the recognition that the purpose of the statute is to deter and punish using a vehicle in circumstances that often lead to reckless and dangerous driving.
[102]These conclusions accord with the way in which the courts approach questions of illegality in contract and in relation to trusts. Whether an analogy can be drawn with the rule that a contract whose making or performance is expressly or impliedly made illegal by statute, or is better drawn with those cases 'where the policy of the law renders contractual arrangements ineffective or void even in the absence of breach of a norm of conduct or other requirement expressed or necessarily implicit in the statutory text', may be open to debate. Whichever analogy may be the more apt, the root principle that is engaged is, as noted earlier, sufficiently captured by any of the expressions 'incongruity', 'contrariety' or 'lack of coherence'.
It follows from that reasoning that persons complicit in the offence of illegal use of a motor vehicle will not owe one another a duty of care regardless of the particular circumstances of the driving by the defendant. It is the fact of the complicity in the offence that deprives each party of the benefit of a duty of care.
It follows from that and from my earlier finding the plaintiff Mr Quine, by being in the motor vehicle knowing it to have been stolen, committed the offence of unlawful use of the motor vehicle, that he was complicit with Mr Keerasawat in the offence of illegally using the vehicle. They were jointly engaged in the unlawful use of the vehicle. In turn, it inevitably follows Mr Keerasawat did not owe Mr Quine a duty of care.
Further, and to the extent Mr Quine's illegal conduct arose by virtue of s 8 he did not, unlike the appellant in Miller v Miller, withdraw from the common unlawful purpose prior to the crash. Therefore because the crash was caused by Mr Keerasawat's reckless or dangerous driving, which offence was a probable consequence of the common intention to prosecute the unlawful purpose of unlawfully using the motor vehicle, and because at the time of the accident they were both continuing to prosecute the common unlawful use of the motor vehicle, Mr Keerasawat did not owe a duty of care to Mr Quine. In making this finding I acknowledge Mr Keerasawat was not charged with or convicted of reckless or dangerous driving, but I am satisfied that Mr Keerasawat's manner of driving, by looking at his mobile phone as he was entering a left hand bend and while he was intoxicated, was reckless or dangerous and was an offence contrary to the Road Traffic Act 1974.
It follows that Mr Quine's claim must be dismissed.
Given my finding the defendant Mr Keerasawat did not owe the plaintiff Mr Quine a duty of care it is unnecessary for me to consider the alternative defence to the plaintiff's claim based upon s 5 of the Offenders (Legal Action) Act 2000. However, because the matter was fully argued and in case I am wrong in my conclusion that the defendant did not owe the plaintiff a duty of care, I propose to consider the alternative basis of the defence to Mr Quine's action for damages.
Offenders (Legal Action) Act
I note that in Miller v Miller [6] the majority observed that in many Australian jurisdictions questions as to whether an injured person can recover damages for personal injuries suffered when the person was acting illegally would in many Australian jurisdictions require consideration of statutory provisions intending to regulate recovery of damages in such circumstances but that there was no relevant statutory provision of the kind in Western Australia. The appellant's injuries in Miller v Miller were suffered on 17 May 1998. The Offenders (Legal Action) Act commenced operation on 17 November 2000 – s 2. By s 4:
This Act applies to an action whether the cause of action arose before or after the coming into operation of this Act.
Therefore although the High Court did not refer to the Offenders (Legal Action) Act the Act applied to the circumstances in which the appellant was injured.
Section 5 provides:
(1)It is a defence to an action in respect of injury or loss suffered by a person (the offender) for the defendant to show that the injury or loss was suffered in the course of criminal conduct by the offender.
(2)Subsection (1) does not apply if the person bringing the action can show that the injury or loss suffered by the offender —
(a)arose from an unlawful act that was intended to result in the offender suffering injury or loss; or
(b)arose from circumstances —
(i)which were entirely separate from those to which the offender was exposed by reason of being engaged in criminal conduct; and
(ii)to which the offender was exposed in common with other persons who were not engaged in criminal conduct.
(3)This section has effect despite anything in section 5 of the Occupiers’ Liability Act 1985.
'Criminal conduct' is defined by s 3 to mean:
(a)the commission of an offence; or
(b)anything done or omitted to be done for the purpose of the commission of an offence, including —
(i)planning it;
(ii)preparing for it;
(iii)travelling to or from the place where it is committed;
(iv)concealing it;
(v)disposing of anything used in the course of it or obtained from it.
'Offence' is relevantly defined in s 3(2)(a):
(2)A reference in subsection (1) to an offence is a reference to —
(a)an indictable offence against a written law or a law of another State, a Territory or the Commonwealth.
In his closing submissions counsel for Mr Quine relevantly submits as follows:
49.Criminal conduct relevantly means an indictable offence against a law of Western Australia (section 3(2)(a)). An offence is indictable if the trial of the action can or has to be by jury.
50.Section 371A of the Criminal Code provides that unlawful use constitutes stealing. The nature of the offence under section 371A is not thereby defined.
52.Section 378 of the Criminal Code provides that a person who steals anything capable of being stolen is guilty of a crime.
53.Section 426 of the Criminal Code provides for summary conviction penalties in respect of section 378 offences.
54.Section 5 of the Criminal Code applies if a provision of the Code provides a summary conviction penalty (section 5(1)(a)).
55.Section 5(2) of the Criminal Code provides that a court is to try the charge summarily unless the prosecutor or the accused applies and the court decides that the charge tried on indictment.
56.The effect of section 5 of the Criminal Code is that those offences that contain a summary conviction penalty are presumptively to be tried before a Magistrate (i.e. not a jury).
57.Exhibit 2 (prosecution notice of the Defendant) shows that the Defendant, charged with stealing a motor vehicle as defined in section 371A of the Criminal Code was convicted and sentenced in the Magistrate’s Court of Western Australia in Midland.
58.There is no evidence in the trial which would allow for any other conclusion in the case of the Plaintiff, had he been charged with stealing the motor vehicle pursuant to section 371A of the Criminal Code, of which there is no evidence that he was.
59.Accordingly, this is not a matter which rises to the requirement of section 5(1) of the Offenders (Legal Action) Act 2000.
I reject the submissions made on behalf of Mr Quine.
In this case the relevant offence is the offence of stealing contrary to s 378 of the Criminal Code. Section 378 reads 'Any person who steals anything capable of being stolen is guilty of a crime ...'
The offence of stealing contrary to s 378 is therefore a 'crime' and is, accordingly, an indictable offence for the purposes of the Offenders' (Legal Action) Act.
By s 67(1a) of the Interpretation Act 1984:
An offence designated as a crime or as a misdemeanour is an indictable offence.
The term 'indictable offence' is also defined in s 3 of the Criminal Procedure Act as meaning:
… a crime or any other offence described by a written law as an indictable offence, irrespective of whether in some circumstances it may be dealt with summarily.
The term 'indictable charge' is defined as meaning:
a charge of an indictable offence.
'Indictment' is defined as:
… a document that contains one or more indictable charges, complies with section 85(2), and is lodged with a superior court.
By s 3 of the Criminal Code:
3.Indictable offences, general provisions as to
(1)This section applies to offences in this Code and in any other written law.
(2)An indictable offence is triable only on indictment, unless this Code or another written law expressly provides otherwise.
(3)A prosecution for an indictable offence, whether or not it may be tried summarily, may be commenced at any time, unless this Code or another written law expressly provides otherwise.
[(4)deleted]
(5)If a person is convicted by a court of summary jurisdiction of an indictable offence, the conviction is to be regarded as being a conviction of a simple offence only, unless the person is convicted of the offence by the Children's Court under section 19B(4) of the Children’s Court of Western Australia Act 1988 or another written law provides otherwise.
(6)A person may be convicted and punished for an offence on indictment notwithstanding that the person might have been convicted of and punished for that offence summarily.
[Section 3 inserted by No. 4 of 2004 s. 28; amended by No. 59 of 2004 s. 80; No. 70 of 2004 s. 36(1); No. 84 of 2004 s. 28.]
Prior to the promulgation of the Criminal Code Amendment Act 2004 the Criminal Code classified offences as crimes or misdemeanours (both of which were indictable) or simple offences. The amendment act deleted the words 'an indictable offence' from the definition and substituted for them the words 'a crime'. The amending act simplified the classification of offences so that there are now only two kinds of offences, indictable offences and simple offences.
Although a stealing offence contrary to s 378 of the Criminal Code may be tried summarily with a summary conviction penalty it remains an indictable offence. The fact that an offender may be prosecuted or convicted otherwise and upon indictment, pursuant to an express provision permitting that to be done, does not mean that the offence is not an indictable offence. A person summarily convicted of such an offence is convicted of an indictable offence: Ross v The Queen (1979) 141 CLR 432. See also Heyes v State of Western Australia (2008) 185 A Crim R 390; [2008] WASCA 124 which considered and applied Ross v The Queen when considering the meaning of the words 'an indictable offence' relevant to the Misuse of Drugs Act 1981 and Pellew v State of Western Australia (2011) 206 A Crim R 593; [2011] WASCA 86.
In my view the accident and the consequent injuries suffered by Mr Quine were suffered in the course of criminal conduct by him being the commission of an offence, that is, an indictable offence, the offence of stealing contrary to s 378 of the Criminal Code.
In the course of criminal conduct
The meaning of the expression 'criminal conduct' as defined in s 3(1) is very wide: Austin v The Electricity Networks Cooperation [2014] WASCA 89 [26] (Newnes JA with whom Pullin and Murphy JJ agreed). It includes not only the commission of an offence but anything done or omitted to be done preparatory for or associated with the commission of the offence, or once the offence has been committed, the concealing of the offence.
In my view s 5(1) does not require that the injury or loss suffered by a person be caused by the criminal conduct of that person. It is only necessary that the injury or loss be suffered in the course of the criminal conduct by the person. That is, there only need be a temporal connection not a causal connection to the criminal conduct. It is not necessary that the injury or loss which is suffered arise from the criminal conduct. In my view the expression 'in the course of' should be construed broadly to cover any injury or loss suffered by the person injured during the criminal conduct or while the criminal conduct is occurring.
This construction is supported by comparing the wording in s 5(2) by which the onus is placed on the injured person to show that the injury or loss:
(a)arose from an unlawful act that was intended to result in the offender suffering injury or loss; or
(b)arose from circumstances —
(i)which were entirely separate from those to which the offender was exposed by reason of being engaged in criminal conduct; and
(ii)to which the offender was exposed in common with other persons who were not engaged in criminal conduct.
The expression 'arose from' requires a causal connection. It is more narrowly construed than the expression 'in the course of' in s 5(1). Were it intended that s 5(1) provide a defence only if injury or loss suffered was caused by the criminal conduct s 5(1) would have been drafted to say that the injury or loss arose from the criminal conduct rather than in the course of the criminal conduct by the injured person, that is the offender.
The expressions 'in the course of' and 'arose from' are similar to the wording in s 5(a) of the Workers Compensation and Injury Management Act 1981 'arising out of or in the course of the employment' in the definition of 'injury', which expression has been judicially considered in a great number of cases. In Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473 (Toohey J) said [487]:
With the introduction of the disjunctive expression 'arising out of or in the course of employment', there was no reason to give 'in the course of' a restricted interpretation (31). Inevitably, perhaps, 'arising out of' was seen as implying a causal relationship; 'in the course of', a temporal connexion.
Although s 5(2) of the Offenders (Legal Action) Act uses the expression 'arose from' rather than 'arising out of', and the meaning of the expression in the Workers' Compensation and Injury Management Act must be understood as being construed in the context of that Act so as to give effect to the remedial purpose of the legislation, in my view there is no material difference in the meaning of the two expressions.
In summary, the expression in s 5(1) 'in the course of criminal conduct' requires a temporal connection between the injury and loss suffered and the criminal conduct whereas the expression in s 5(2) 'arose from' requires a causal connection between the injury and loss suffered and either the relevant unlawful act or circumstances referred to.
Section 5(2)(b) Offenders (Legal Action) Act
Counsel for Mr Quine submits that the circumstances in which the defendant Mr Keerasawat lost control of the vehicle were entirely separate from the criminal conduct, that is, the unlawful use or stealing of the motor vehicle. The accident, it is submitted, did not arise from simply driving the vehicle nor as an incident of escaping detection or otherwise fleeing the scene of the crime. Mr Keerasawat lost control of the vehicle because he was negligent by failing to maintain proper control over the vehicle when he took his eyes off the road and failed to negotiate the left hand bend on Terrace Road. It is submitted that as Mr Keerasawat lost control of his vehicle on a roadway in a built‑up residential area when there were other cars using the road the injuries suffered by Mr Quine arose from circumstances to which he was exposed in common with other persons who were not engaged in criminal conduct, that is other road users and members of the public.
The plaintiff bears the onus of establishing that s 5(1) does not apply. To discharge that onus, if the plaintiff relies upon s 5(2)(b), the plaintiff has to establish both of the requirements in s 5(2)(b)(i) and s 5(2)(b)(ii).
In my view Mr Quine has not established the injuries suffered by him arose from either of the circumstances in (b)(i) and (b)(ii). In my view the circumstances in which the injuries were suffered were not entirely separate from those to which Mr Quine was exposed by reason of being engaged in criminal conduct for the purposes of (b)(i). On the contrary, the injuries suffered were closely connected to the criminal conduct in which he was engaged, that is the joint unlawful conduct or purpose with Mr Keerasawat of unlawful use of a motor vehicle, that is, stealing a motor vehicle. As I have earlier found, at the time of the accident Mr Quine was committing the offence of unlawful use of a motor vehicle contrary to s 371A of the Criminal Code. Mr Keerasawat was driving a stolen vehicle when unlicensed to do so and when he was intoxicated, in circumstances known to Mr Quine, and therefore the circumstances in which the injuries were suffered were intrinsically connected to the criminal conduct in which both the plaintiff and defendant were engaged. Had Mr Quine not engaged in that criminal conduct he would not have been exposed to the risk of injury by Mr Keerasawat's manner of driving.
Further, as the High Court recognised in Miller v Miller it is often a probable consequence of the commission of a crime under s 371A that the driver will drive recklessly or dangerously. That is more so the case here where Mr Keerasawat was intoxicated.
Further, in relation to par (b)(ii), the risks to which Mr Quine was exposed were not in common with other persons who were not engaged in criminal conduct. The circumstances to which Mr Quine was exposed arose from him being a passenger in a car which was stolen knowing it was stolen. Mr Quine was exposed to those circumstances only because he was engaged in criminal conduct. There is a causal connection between the criminal conduct engaged in by Mr Quine and the injuries suffered by him. No other persons who were not engaged in that criminal conduct were exposed to those same circumstances. Compare Austin per Newnes JA [69] – [70] who found the appellant's injuries were suffered in the course of the very act of attempting to steal the respondent's electrical wire and were therefore directly related to the circumstances in which he was exposed by reason of being engaged in the commission of a criminal offence. Those circumstances were not circumstances to which persons not involved in the criminal conduct were exposed.
The position would be the same if another vehicle which was being driven negligently, such as driving through a red light, collided with the vehicle in which a plaintiff engaged in criminal conduct was a passenger. This issue was raised in Parliament when the Offenders (Legal Action) Bill was being debated in the Upper House. In response to a question regarding the meaning of cl 5(2)(1) the Attorney General explained as follows:
If the criminal were travelling on a bus which crashed, that would be entirely separate from the criminal act. Assuming the criminal was not actually robbing the bus, and every other passenger on the bus was similarly exposed, that situation would be covered by this clause. On the other hand, if the criminal were driving his car to a property that he intended to rob and, as happened in the case of Godbolt v Fittock, the car was driven off the road and the passenger, similarly involved in the burglary, was injured, the passenger would be excluded from recovering damages against the driver. It is not a total exclusion of irrelevant events; it is a partial exclusion, which occurs only when the things that happen are in common with a large number of other people, such as a bus crash or a train derailment. In such a case, the criminal would have the capacity to recover damages in the same way as any other person who suffered. It is not affected by the fact the person was on the way to commit a crime. If the criminal is driving his car and another vehicle collides with it, the criminal is excluded from recovering damages from the other driver by virtue of being on the way to commit a crime. It would be difficult in such a case to prove that the person was on his way to commit a crime, so perhaps a more realistic example would be criminals racing away from a bank after having robbed it. There would still be factual matters to consider in such a case. Clause 5(2)(b)(ii) is limited in its effect. I thank members for their support and comment the Bill to the House. (emphasis added)
In the passage I have highlighted the conduct would fall within para s 3(b)(iii) of the definition of 'criminal conduct'. However, in Mr Quine's case his conduct falls within s 3(a) of the definition of the 'criminal conduct' because the accident occurred while he was committing the offence of unlawful use of a motor vehicle. Therefore, arguably, the circumstances in which Mr Quine was injured are more closely connected to the cause of the injuries than in the hypothetical example given by the Attorney General. The only persons exposed to the risk were those involved in the criminal conduct that is, the plaintiff and the defendant, who were in the motor vehicle when the defendant failed to control the motor vehicle and crashed into a tree on the median strip. The injuries suffered by Mr Quine were not only suffered in the course of the criminal conduct by him, they arose from that criminal conduct.
In summary, I conclude the plaintiff has not discharged the onus of proof on him pursuant to s 5(2) and that the defendant has discharged the onus on him pursuant to s 5(1) to show that the injury or loss suffered by Mr Quine was suffered in the course of criminal conduct by Mr Quine.
It follows I would also dismiss the plaintiff's claim on the basis the defendant has a defence to the action pursuant to s 5(1) of the Offenders (Legal Action) Act.
Negligence
It remains to consider whether if I am wrong in my finding that in the circumstances the defendant did not owe the plaintiff a duty of care and that s 5(1) of the Offenders (Legal Action) Act provides a defence to the plaintiff's action, whether the circumstances in which the accident occurred and in which Mr Quine suffered the injuries arose from the negligent driving of Mr Keerasawat. Although in his defence Mr Keerasawat formally denied he was negligent in causing the accident, it was never really an issue between the parties. In my view, in the circumstances in which the accident occurred as I have found above [86], it is clear the accident was caused by Mr Keerasawat's negligence in failing to adequately control the vehicle and in driving without due care and attention. Had I found the defendant owed a duty of care to the plaintiff and that s 5 of the Offenders (Legal Action) Act did not provide a defence I would have found the accident was caused by Mr Keerasawat's negligence.
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