R v Cramp

[1999] NSWCCA 324

Reported Decision: 110 A Crim R 198

New South Wales

Court of Criminal Appeal

CITATION:	R v CRAMP [1999] NSWCCA 324 revised - 10/12/99
FILE NUMBER(S):	CCA 60723/98
HEARING DATE(S):	15 October 1999
JUDGMENT DATE:	30 November 1999
PARTIES :	REGINA v William Peter CRAMP
JUDGMENT OF:	Sully J at 1; Ireland J at 1; Barr J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/31/0063
LOWER COURT JUDICIAL OFFICER:	Nader ADCJ QC

COUNSEL:	Crown: P G Berman Appellant: B M J Toomey QC/B H Hughes
SOLICITORS:	Crown: S E O'Connor Appellant: McClellands
CATCHWORDS:	Criminal law - manslaughter - alternative bases for a finding of guilt - whether jury must be unanimous as to either basis. HELD: no; Criminal law - manslaughter alternatively by gross negligence and unlawful and dangerous act - whether these bases involved materially different issues or consequences; HELD: they did not.
ACTS CITED:	Accessories and Abettors Act 1861 s 8 Crimes Act s 31A, 52A(2), 346 Crimes Act (Victoria) s 338 Traffic Act 1909 s 4E(1D)
CASES CITED:	R v Agbim [1979] Crim LR 171 R v Anthony [1965] 1 All ER 440 R v Beach (1994) 75 A Crim R 447 R v Brown (1984) 79 Cr App R 115 R v Clarke & Johnstone [1986] VR 643 R v Demirian [1989] VR 97 Du Cros v Lambourne [1907] 1 KB 40 Cain v Doyle (1946) 72 CLR 409 R v Eades (1991) 57 A Crim R 151 R v Fitzgerald [1992] Crim LR 660 R v Flynn (1985) 82 Cr App R 319 R v Gaughan [1990] Crim LR 880 R v Giannetto [1996] Cr App R 1 Giorgianni v The Queen (1984-1985) 156 CLR 473 R v Isaacs (1997) 41 NSWLR 374 KBT v The Queen (1997) 191 CLR 417 R v Levidis (1990) 51 A Crim R 216 R v Leivers & Ballinger (1998) 101 A Crim R 175 R v Mitchell [1994] Crim LR 66 R v More (1986) Cr App R 234 R v Muto & Eastey [1996] 1 VR 336 R v Petrov (1980) 2 A Crim R 101 R v Phillips (1988) 86 Cr App R R v Price [1991] Crim LR 465 R v Serratore [1999] NSWCCA 377 R v Sourelos, Court of Criminal Appeal, 6.9.84 R v Stevens, Court of Criminal Appeal, 13.8.93 Swindall v Osborne (1864) 2 Car. & K 230 Thatcher v R (1987) 39 DLR (4th) 275 R v White (1989) 41 A Crim R 237 R v Youssef, Court of Criminal Appeal, 14.12.91
DECISION:	Appeal against conviction dismissed; Leave granted to appeal agaisnt sentence; Appeal against sentence dismissed

IN THE COURT OF
CRIMINAL APPEAL

60723/98

SULLY J
IRELAND J
BARR J

Tuesday, 30 November 1999

REGINA v William Peter CRAMP

JUDGMENT

1   SULLY J and IRELAND J: We have read in draft the judgment of Barr J. We agree with the orders proposed by his Honour and with his Honour’s reasons for those orders.

IN THE COURT OF
CRIMINAL APPEAL

60723/98

SULLY J
IRELAND J
BARR J

Tuesday, 30 November 1999

REGINA v William Peter CRAMP

JUDGMENT

2   BARR J: The appellant William Peter Cramp was found guilty by a District Court jury of the manslaughter of Emma Jane Long (the deceased). He was sentenced to penal servitude for nine years and four months, comprising a minimum term of seven years and an additional term of two years four months. He appeals against the conviction and seeks leave to appeal against the sentence.

3   The facts on which the charge was based may be summarised in this way. The appellant, then 55 years old, owned land in Black Rock Road, Martins Creek, not far from Maitland, and visited it from time to time. His neighbours there were the Long family, whose children were the deceased, aged sixteen, Llewellyn, aged thirteen and Adam, aged ten years. The appellant and the Longs became friends. He kept horses on his property and let the children visit him and ride them.

4   On Saturday 23 September 1995 Mrs Long and her children accepted the appellant’s invitation to visit him for a barbecue. A friend of the Long children, Brett Cowan, aged fourteen, went with them. The deceased drove the Long family car to the appellant’s property. She was a learner driver and L-plates were affixed to the car. The appellant served food and drinks and asked Mrs Long whether the deceased might take a glass of wine. Mrs Long said that she might have a small one. Before long, Mrs Long had to leave in order to attend an appointment in Newcastle and the children remained with the appellant.

5   During the afternoon the appellant gave the deceased red wine and beer to drink. The deceased was heard to remark that the appellant was drunk, that she was not, and that she had had as much to drink as he had.

6   The appellant suggested that they all drive to Paterson to buy ice cream and the deceased asked whether she might be allowed to drive. The appellant said that he would think about it, then remarked that he was too drunk to drive and that the deceased would have to drive. He threw her his keys. She drove his car, a Saab turbo. The appellant sat in the front passenger seat. The three boys sat in the back. As the deceased drove through the front gate of the appellant’s property the car struck the gatepost but the appellant showed no concern.

7   The deceased began to drive fast and the appellant encouraged her to go faster, saying “floor it”. The speedometer reached 140 kilometres per hour. After slowing to negotiate an intersection the deceased again drove fast and the boys, frightened, asked her to slow down.

8   At Paterson the appellant took the deceased into a tavern and ordered a tequila for her. He drank beer. The bar attendant refused to serve alcohol for the deceased because she appeared too young, though she did not seem to be intoxicated. The appellant, on the other hand, was exhibiting several signs of drunkenness, tripping as he walked and loudly repeating himself. He said a number of times that the deceased had not yet got the car into fifth gear.

9   As they left the tavern the appellant took with him a case of beer, some red wine and some ice.

10   The deceased continued to drive the car. Near a bridge on Martins Creek Road the appellant again said “floor it” and the speedometer reached 130 kilometres per hour. On the encouragement of the appellant, the deceased overtook two other vehicles on that road. The speedometer reached 150 kilometres per hour.

11   They arrived at the appellant’s property and beer was taken from the boot for the appellant and the deceased. The deceased then drove along Black Rock Road. On three occasions the car stopped and beer was taken from the boot and consumed by the appellant and the deceased. Bottles were thrown through the window or the sunroof as the car went along. The appellant was lighting cigarettes and throwing them out through the sunroof.

12   For part of that journey the appellant himself drove. For a period of about twenty minutes Adam Long sat on the appellant’s knees and steered the vehicle. He did so not because he wanted to drive but because he wanted to prevent the deceased from driving, being afraid about the speeds the car was reaching. He tried to steer the car into a boggy place so as to disable it and bring the journey to an end. Sadly, he was not successful.

13   The party returned to the appellant’s property, where a conversation took place between Llewellyn Long and the deceased. I shall refer to it again later in this judgment. The car started off again with the deceased still driving. As before, the appellant was in the front passenger seat and the remaining children sat in the back seat. After about 2.5 kilometres, shortly after the car rounded a bend, someone passed the deceased a cap to stop her hair from blowing about. As she put it on her head she had only one hand on the steering wheel. The vehicle was swerving. A few seconds later the car left the road and hit a telegraph pole. The deceased and the appellant were thrown out because they were not wearing seat belts. The deceased was killed and the appellant received severe head injuries, one result of which is that he has no recollection of the events.

14   The blood alcohol concentration of the deceased was 0.167 grams of alcohol in 100 millilitres of blood. The appellant’s blood alcohol reading was 0.103 grams per 100 millilitres of blood some five hours after the collision and an expert thought the most likely range at the time of the collision would have been between 0.13 and 0.178.

15   More than three hours elapsed between the beginning of the drive to Paterson and the collision. Altogether the car travelled about thirty-five kilometres.

16   The Crown presented its case in a way that entitled the jury, should they be satisfied about the evidence, to conclude that the death of the deceased resulted from the appellant’s unlawful and dangerous act or from his gross negligence or from them both.

17   The first four grounds of appeal may be dealt with together. They assert that the trial miscarried because the Crown relied on the two bases of guilt, namely the appellant’s unlawful and dangerous act and his gross negligence, because his Honour failed to instruct the jury that they had to be unanimous about one basis or the other, because his Honour’s directions must have confused the jury and because the appellant ought not to have been convicted since the jury were not unanimous about the appellant’s guilt on either basis, as appeared from the answer to a question his Honour asked the foreman of the jury.

18   Early in the summing-up, his Honour said this -

… I have told you that your verdict must be unanimous and in fact the old question that was asked of a jury after the verdict was taken from the foreman was “Is that the verdict of you all” and the rest of the jurors would sort of remain silent indicating that is was their verdict, but that is where the unanimity ends with the verdict. As long as you are unanimous about your verdict, your path to the verdict may differ, your paths to the verdict may differ. This case is put in several ways to you and if you arrive at a verdict, as long as it is the same verdict, how each of your got to that verdict, provided you do it according to the directions that I have given to you does not matter, I hope that is understood. The way to the verdict does not matter as long as the verdict itself is unanimous.
One of you may find that the accused is guilty on the basis of gross negligence and indeed even within that category or may find different acts to be more convincing than others. I hope it is clear what I mean, if there is any doubt about what I mean you can come back and ask me, I will try and explain it in more depth but I think it may be clear to you that what has to be unanimous is not your whole reasoning process but your conclusion, your verdict has to be unanimous.
…
Members of the jury I mentioned to you that this crime charged against this accused is one of manslaughter. It is a very generic kind of offence, it can be committed in many different ways because it is a very old offence - is a very ancient offence on the criminal calendar, manslaughter. As I said to you it virtually is the unlawful taking of a life causing a life to be lost by some unlawful or dangerous conduct and I will define it for you more precisely, do not take that as a definition, and it can be committed in different ways …
Now the Crown has put this particular manslaughter case on two broad bases. … would you just hand these to counsel please - they are a suggested aide memoir that I have prepared for the jury …

19   The document referred to by his Honour was in the following terms -

MANSLAUGHTER BY GROSS NEGLIGENCE
On 23 September 1995 at Martins Creek, NSW
1. William Peter Cramp (the accused) engaged in conduct which included one or more of the following:
(i) Permitted Emma Jane Long (the deceased) to drive his car knowing that the deceased was affected by alcohol.
(ii) Permitted the deceased to drive his car at high speed.
(iii) Permitted the deceased to drive his car dangerously.
(iv) Permitted the deceased to drive his car while she was not wearing a seat belt.
(v) Permitted the deceased to consume alcohol while she was driving his car.
2. One or more of the foregoing acts of the accused occasioned the death of the deceased.
3. The act or acts occasioning the death of the deceased was/were done with gross negligence and with reckless disregard for the safety of the deceased.
4. The act or acts occasioning the death of the deceased showed such a serious disregard for the safety of the deceased as to amount to a crime.
If you are satisfied beyond reasonable doubt of the existence of the 4 constituent elements specified above you should find the accused guilty of feloniously slaying Emma Jane Long and no further deliberation is necessary.
If you are not satisfied of any one or more of those 4 constituent elements you should then consider the following matters:
MANSLAUGHTER BY UNLAWFUL AND DANGEROUS ACT
On 23 September 1995 at Martins Creek, NSW
1. The deceased drove a motor vehicle on a public street:
(i) negligently, furiously, or recklessly;
(ii) at a speed or in a manner which was dangerous to the public;
(iii) while under the influence of alcohol;
2. Some or all of the conduct specified in sub-paragraphs 1(i) to 1(iv) (sic), above occasioned the death of the deceased.
3. The accused aided and abetted such of the conduct of the deceased specified in sub-paragraphs 1(i) to 1(iv) (sic) as you have found to have occasioned the death of the deceased.
4. The aiding and abetting by the accused of the conduct of the deceased referred to in paragraph 2, above, created a real risk of serious injury to the deceased.
If you are satisfied beyond reasonable doubt of the existence of the 4 constituent elements specified above you should find the accused guilty of feloniously slaying Emma Jane Long.
If you are not satisfied of any one or more of those 4 constituent elements you should find the accused not guilty of feloniously slaying Emma Jane Long.
“to aid and abet ” an offence means any one or more of the following:
to assist the commission of the offence;
to instigate the commission of the offence;
to encourage the commission of the offence;
to promote the commission of the offence;
to urge the commission of the offence;
to permit the commission of the offence where the commission of the offence would be either impossible or appreciably more difficult without the permission.
NOTE: In order to find that the accused aided and abetted the offence of driving under the influence of intoxicating liquor by the deceased the jury must be satisfied beyond reasonable doubt that the accused expected that at the time of driving the motor vehicle on a public street the deceased would be under the influence of intoxicating liquor.

20   Having handed copies of the document to the jury, his Honour continued -

I have put the manslaughter in this case into two broad categories as has been suggested by the Crown. The first category is what I have called manslaughter by gross negligence and the second category is what I have called here as manslaughter by unlawful and dangerous act. They are two different ways in which manslaughter can be committed and what the Crown says to you in this case is that in effect what the accused did in this case amounted to both kinds of manslaughter. What he did was both grossly negligent thereby occasioning the death of the deceased and what he did was unlawful and dangerous, thereby occasioning the death of the deceased.
Of course he does not have to prove both those kinds of manslaughter it is sufficient to prove one of them to your satisfaction beyond reasonable doubt. And it is not necessary for you to find more than one of them in order to convict the accused, you may in fact find both of them but the way I suggest you proceed through it would mean that at least some of you may not have to turn from one to another, depending on your state of mind at the end of considering one of them. That will become clear to you as I proceed.

21   His Honour dealt with the ingredients the Crown had to prove to obtain a verdict of guilty by gross negligence, referring as he did so to the contents of the document. His Honour continued -

Now members of the jury if you are satisfied beyond reasonable doubt of the existence of those four constituent elements you should find the accused guilty of feloniously slaying Emma Jane Long, and no further deliberation would be necessary. That would be the end of your task apart from coming in and delivering your verdict. But if you are not satisfied of any one or more of those four constituent elements you should then consider further matters.
What you must then consider is whether the accused has been guilty of manslaughter by an unlawful and dangerous act. Now I have had to put all these matters in a certain order, but you do not have to consider them in the order that I have put them in. I have put them in what I regard as a logical order that may appeal to you as an appropriate way of going through these matters. But you are free to consider these matters in any order you wish.

22   His Honour then dealt with the ingredients of manslaughter by unlawful and dangerous act, referring again to the contents of the document. In doing so he gave a detailed and careful explanation of the meaning of aiding and abetting. His Honour continued -

If you are satisfied beyond reasonable doubt of those four elements then the accused should be found guilty of feloniously slaying Emma Jane Long. If you are not satisfied of any one or more of those constituent elements you should find the accused not guilty of feloniously slaying Emma Jane Long.

23   Later, in dealing with the jury’s answers to the questions whether they were satisfied beyond reasonable doubt about the ingredients set out in the document, his Honour said -

Your answer to that question in each case, you will realise, must be either yes or no, there is no middle ground to that question, you are either satisfied beyond reasonable doubt or you are not satisfied beyond reasonable doubt. There is no middle ground, the answer must be yes or no and why I have described this as a check list is that you can ask yourself that question in relation to each element and if you answer any question no, then you must, in the case of the manslaughter by unlawful and dangerous act because as soon as the answer to any question is no, that particular form of manslaughter is negated because one of the elements will not have been made out.
If you do answer any of the questions no, then you have decided by necessary implication that the accused is not guilty of that particular offence.
Manslaughter by gross negligence is, there is really only one offence, it is manslaughter but it can be constituted in different ways. If you find the answer to any one of the questions on page 1 to be no, then you will have by necessary implication found that the accused was not guilty of manslaughter by gross negligence, then you turn to consider manslaughter by unlawful and dangerous act.
If you come to any question which you answer in the negative there, then of course your verdict must be one of not guilty.
… if you find that you are not satisfied beyond reasonable doubt of any one of the elements then it means that the accused, if you are considering one form of manslaughter first, and by the way you do not have to consider manslaughter by gross negligence first if you do not want to. If you want to consider manslaughter by unlawful and dangerous act first you can do that but if you find that you are not satisfied beyond reasonable doubt of one of the elements of manslaughter by unlawful and dangerous act then you have to turn to consider manslaughter by gross negligence. And if at that stage you find that there is an element you are not satisfied of beyond reasonable doubt then you would have to find the accused not guilty.
I will put the converse to you, so that I am not misunderstood. If you are considering either manslaughter by gross negligence or manslaughter by unlawful and dangerous act and you find that you are satisfied beyond reasonable doubt of each of the four elements then the accused is guilty of manslaughter and you do not have to consider the other form of manslaughter because there is only one crime. These are simply different ways in which it can be committed.

24   There followed an adjournment, during which defence counsel asked his Honour to direct the jury that they could not convict the appellant unless they were unanimous about his gross negligence or about his unlawful and dangerous act. His Honour declined to do so but said that he would say something else to the jury. On resumption his Honour said this -

There is only offence of manslaughter. There is only one crime known as manslaughter, but there are several ways of committing it. And the two ways which have been raised in this case are two of the ways it can be committed and they are distinct ways in which the crime can be committed. So quite obviously you cannot in any sense mix the elements up with one another. I mean the elements of manslaughter by gross negligence are different elements from the elements of manslaughter by unlawful and dangerous act. And it is only if in respect of at least one of them you find all the elements proved beyond reasonable doubt that you find the accused guilty.
And whichever one you consider first, if you find one of the elements not proved beyond reasonable doubt you turn to consider the other one. You do not find the accused not guilty simply because when you are considering the first form of manslaughter that you happen to consider you find one of the elements not proved, or that you are not satisfied of it beyond reasonable doubt. You do not then say not guilty. You, of course, have got to go and consider the other one. I hope that is clear.

25   At the conclusion of the summing-up this exchange took place -

HIS HONOUR: Members of the jury, I’ll now ask you to go and consider your verdict. I will ask you Mr Foreman, when you come back. If you arrive at a guilty verdict, if you do, and I don’t know what verdict, if you do, I will ask you Mr Foreman, whether you have arrived at it, whether the whole jury have arrived at it by reference to one kind of manslaughter. If you say yes to that, I will ask you which kind of manslaughter it was, whether it was manslaughter by unlawful and dangerous act, or manslaughter by gross negligence.
If you have arrived at it by different paths, in other words if there is a mixture of those two things, you simply say to me no we cannot tell you. Do you understand, because I will not inquire into the individual decisions of jurors, you understand that? Do you understand what I mean? Perhaps I will go through it more slowly.
There are two kinds of ways in which manslaughter can be arrived at there. If the jury find the accused guilty, that will be in answer to a question my associate will ask you. I will then ask you, Mr Foreman, are you able to say whether it was, whether the verdict was based on gross negligence or unlawful and dangerous act. If you have been at least unanimous to that extent, that you have come to the verdict, all of you, by one kind of manslaughter. Do you understand me?
JURY FOREPERSON: Yes your Honour.
HIS HONOUR: You can say (yes) to that. And I will ask you which one it is. That will assist any court that may have to review these proceedings, do you understand me?
JURY FOREPERSON: Yes your Honour.
HIS HONOUR: They will at least know what area you were (in). But if there is any, if some of you arrived at that conclusion by different paths, if some of you arrived at it by way of unlawful and dangerous act, and others by way of gross negligence, you only have to say to me no we cannot give you that information, we cannot answer that question, because it would mean that disclosing the matter which the jury have a right to keep to themselves. Do you understand me?
JURY FOREPERSON: Yes your Honour.

26   The jury returned in due course with a verdict of guilty and his Honour said this -

Mr Foreman, did the jury arrive at the verdict through, unanimously through one of those paths, either gross negligence or unlawful and dangerous act?

27   The reply was -

We cannot say, your Honour.

28   It was submitted on appeal that where there are alternative bases of liability for a single offence charged, the jury ought generally to be told that they must all agree on one basis or another (or both or all). The only exception to this general rule will be where the Crown can prove that the accused must be liable on one basis or another but, because of the state of the evidence, cannot say which. This was not such a case because the Crown could point to the facts and assert alternatively that they proved guilt by gross negligence or unlawful and dangerous act. It could have conducted the trial on either basis alone. As the foreman’s answer to his Honour’s question showed, the jury were not unanimous about liability by gross negligence or unlawful and dangerous act, so the conviction should be quashed and a new trial should be ordered.

29   Counsel for the appellant relied on a passage in the judgment of Fitzgerald P and Moynihan J in R v Leivers & Ballinger (1998) 101 A Crim R 175. That was a case in which the prosecution could prove that each of the appellants was guilty of murder or manslaughter (the distinction between which is not relevant for present purposes) either as a principal because she or he was a party to a joint criminal enterprise, namely the beating that resulted in the death of the deceased, or as an accessory, having restrained or disabled the deceased before the beating or having encouraged others to beat the deceased. However, the prosecution could not prove that either appellant must have been a principal or an accessory.

30   It was held that the trial judge was not wrong in not directing the jury that they must all agree about the basis on which they found the appellant guilty. Their Honours said at 188 -

Where more than one basis of criminal liability is relied on against an accused it is in our opinion necessary for the jury to be unanimously satisfied that the requirements of at least one basis of liability are proved beyond reasonable doubt. It will not necessarily be sufficient for some members of the jury to be satisfied that the requirements of one basis of liability are established and for other members of the jury to be satisfied that the requirements of another basis of liability are established. However, that will be sufficient if the alternate bases of criminal liability do not involve materially different issues or consequences.

31   During the course of their judgment their Honours reviewed a wide range of cases decided in Australian and other common law jurisdictions, particularly R v Giannetto [1996] Cr App R 1 in which the English Court of Appeal itself reviewed much the same range of cases. Both judgments draw on the judgments of the members of the Court of Appeal of Canada in Thatcher v R (1987) 39 DLR (4th) 275 and refer to the opinion of Professor Sir John Smith who, in his paper Satisfying the Jury [1988] Crim LR 335 at 344, proposes a principle of general application that when the prosecution allege more than one factual basis for the crime charged and it is not possible to say “if it was not the one, then it must have been the other” the jury should always be directed that they must all be satisfied as to the one basis or all satisfied as to the other, or both.

32   There appears to be no difficulty in applying the principle to cases where the accused must have been principal or accessory but where it is impossible to say which. There are examples of such cases in several jurisdictions.

33   In Swindall v Osborne (1864) 2 Car. & K 230, the deceased was killed by one of two carts. The driver of one of them incited the driver of the other to kill the deceased. The defendant was the driver of one of the carts, but the prosecutor could not say which one had killed the deceased.

34   The defendant had been charged as a principal under the provisions of s 8, Accessories and Abettors Act 1861, which is as follows -

Whosoever shall aid, abet, counsel or procure the commission of any indictable offence … at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender.

35   The conviction was held good, because if the defendant was not the principal, as driver of the cart that killed the deceased, he was an accessory because he incited the other driver.

36   In Du Cros v Lambourne [1907] 1 KB 40 the appellant was convicted of driving at a speed dangerous to the public, having contended at trial that another was driving and that he was in the passenger’s seat. The conviction was held good, because if he was not the principal he was liable as an accessory for inciting the driver.

37   In R v Giannetto the appellant was convicted of the murder of his wife. The Crown could not say whether he killed her himself or got somebody else to do so. The jury was held entitled to convict. Delivering the judgment of the Court, Kennedy LJ said at 8 -

There are two cardinal principles. The first is that the jury must be agreed upon the basis on which they find a defendant guilty. The second is that a defendant must know what case he has to meet. When the Crown allege, fair and square, that on the evidence, the defendant must have committed the offence either as principal or as secondary offender, and make it equally clear that they cannot say which, the basis on which the jury must be unanimous is that the defendant, having the necessary mens rea, by whatever means caused the result which is criminalised by the law. The Crown is not required to specify the means, because the legal definition of the crime does not require it; and the defendant knows perfectly well what case he has to meet.

38   In Thatcher v R the appellant was charged with the murder of his former wife. The Crown could not say whether he had killed her or whether he had aided and abetted someone else to do so. There was a local statute which had the same effect as s 8 of the Accessories and Abettors Act. Dickson CJC observed at 306 that that statute had been designed to alleviate the necessity for the Crown to choose between the two different forms of participation in a criminal offence. His Honour continued -

The law stipulates that both forms of participation are not only equally culpable, but should be treated as one single mode of incurring criminal liability.

39   His Honour said at 310 -

The appellant’s submission ignores the very reason why Parliament abolished the old common law distinctions: namely they permitted guilty persons to go free.

As Professor Peter Mackinnon points out in “ Jury Unanimity: A Reply to Gelowitz And Stuart ” 51 CR (3d) 134 at 135 (1986) if an accused is to be acquitted in situations where every juror is convinced that the accused committed a murder in one of two ways, merely because the jury cannot agree on which of two ways “it is difficult to imagine a situation more likely to bring the administration of justice into disrepute - and deservedly so.”

40   Of course, the accused would not be acquitted, but the same criticism may be made of the inability of a jury in those circumstances to return a verdict of guilty.

41   In R v Serratore [1999] NSWCCA 377 the appellant was convicted of murdering his girlfriend. The Crown asserted that he must have killed her or procured someone else to do so, but could not say which. S 346 Crimes Act was in terms similar to the English and Canadian statutes dealing with the indictment of principals and accessories. The trial judge refused to require the Crown to plead alternative counts, one charging the appellant as principal and one charging him as principal in the second degree or as accessory. That refusal was made the subject of a ground of appeal. In a related ground of appeal it was asserted that the trial judge erred in permitting the alternatives to be considered by the jury. Those grounds of appeal failed.

42   See also R v White (1989) 41 A Crim R 237, a New South Wales conviction of murder as principal or accessory, R v Sourelos, Court of Criminal Appeal, New South Wales, 6 September 1984 and R v Gaughan [1990] Crim LR 880.

43   In R v Fitzgerald [1992] Crim LR 660 the prosecution asserted that the appellant himself set fire to the complainant’s scooter or was a party to a joint criminal enterprise another member of which did so. The trial judge told the jury that they had all to agree which before they could convict. The case is of no assistance because the point about unanimity was not decided in the Court of Appeal.

44   Where the difficulty has not been in distinguishing whether the accused was the principal or an accessory, cases have typically involved a prosecution allegation that the accused committed a number of discrete acts, any of which would entitle the jury to convict, and an invitation to convict on all or any of them.

45   In R v Agbim [1979] Crim LR 171 the appellant was convicted of a number of counts of procuring the execution of a valuable security by deception. The case concerned claims made by a medical practitioner for financial aid in respect of monies he said that he had paid to certain employees. The prosecution contended that some of the claims were false because the appellant claimed higher wages than he had paid, some because he claimed that employees had worked longer hours than they had in fact and some because the alleged employees had never been employed. The jury were not directed to be unanimous that any of certain claim forms mentioned in the indictment was not true and correct. According to the short report, the appeal was dismissed because the Court of Appeal was of the opinion that so long as the jury were unanimous about guilt on any count they need not have agreed about the respects in which the claim was false.

46   The decision was criticised in a short commentary at 171-172.

47   In R v Brown (1984) 79 Cr App R 115 the Crown had to prove that the appellant had, by a statement which he knew to be false, misleading or deceptive, induced another to enter into an agreement. Evidence was tendered of several statements said to be false, misleading or deceptive. In answer to a question from the jury, the trial judge said that they would be unanimous even though they did not all rely on the same statement. Quashing the conviction, the Court of Appeal held that the jury had to be unanimous as to at least one of the statements.

48   The Court looked at the transcript in R v Agbim and distinguished it for reasons set out and criticised by Professor Smith at [1988] Crim LR 366, 367, but whether R v Agbim was distinguishable or wrong is not critical for present purposes.

49   In R v Flynn (1985) 82 Cr App R 319 the charge was possessing an offensive weapon. An offensive weapon was defined as made or adapted for causing injury to the person or intended for such use. The jury were told to decide unanimously whether the first part of the definition applied and, if not, to make the same decision about the second. That approach was approved in the Court of Appeal.

50   The conviction in R v More (1986) Cr App R 234 stood because the House of Lords found it unnecessary to decide whether the trial judge was wrong in failing to give a unanimity direction where several independent representations were relied on, any of which might have been sufficient to convict. The House observed that there was no discernible risk of the jury being satisfied about one representation and not another because in the way the trial had been conducted all the representations stood or fell together. It would follow that the House must have thought that the jury were unanimous about all of them.

51   In R v Price [1991] Crim LR 465 there were two counts of deception for consideration on appeal, each based on alternative representations, any of which could prove guilt. On the first count the jury were not told that they must all agree about any representation but the verdict on another count showed that they must all have been satisfied about a particular representation. On the second count considered on appeal the trial judge in effect told the jury that they had to be unanimous as to a particular representation.

52   In R v Phillips (1988) 86 Cr App R 18 the prosecution asserted that the appellant had conspired with a number of persons to commit a criminal act. Conspiracy with any one of them would have been enough for a conviction. The Court of Appeal held that it was sufficient that the jury be satisfied that the appellant had conspired with at least one other person to commit the offence charged, no matter who. A submission that they all needed to agree on the identity of the co-conspirator was rejected.

53   In R v Mitchell [1994] Crim LR 66 the appellant had been convicted of the unlawful harassment of an occupier of premises. The Crown relied on a number of separate and different acts of harassment. The jury were not directed that they must all be satisfied that any particular act had been proved. The nature of the acts and of the evidence suggested that they did not stand or fall together. It was held on appeal that the jury should have been directed that they had to be unanimous about one or more particular acts.

54   In KBT v The Queen (1997) 191 CLR 417 the appellant was convicted of maintaining an unlawful relationship of a sexual nature with a child. By a provision of the relevant criminal code a person could not be convicted of such an offence unless that person had done an act of a specified kind on three or more occasions. The Crown relied on evidence of more than three such acts. The jury were not told that they all had to agree about the commission by the appellant of the same three or more acts. It was held in the Queensland Court of Appeal that such a direction was necessary. The Court rejected a submission that the direction was unnecessary because in the way the trial had been conducted, all the alleged acts had been committed or none of them. The Queensland Court of Appeal nevertheless dismissed the appeal on another ground, which was the only one dealt with in the High Court.

55   In R v Beach (1994) 75 A Crim R 447, a decision of the Victorian Court of Criminal Appeal, the appellant had been convicted of one count of causing the death of another by the culpable driving of a motor vehicle and one count of negligently causing serious injury. The first count was based upon s 338 of the Crimes Act (Victoria), which states, relevantly -

(2) … a person drives a motor vehicle culpably if he drives the motor vehicle -
…
(b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; or
(c) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle;
…
(3) A presentment for an indictable offence under this section shall specify which form of culpability within the meaning of sub-section (2) is charged but evidence of the whole of the circumstances shall be admissible on the hearing of the presentment.

56   On the first count the Crown charged that the appellant had driven his vehicle negligently or whilst under the influence of alcohol, relying on sub-s (2)(b) and (c). The jury were not directed that they must be unanimous that the appellant had driven negligently or that he had driven under the influence of alcohol. That was made the subject of an appeal to the Court of Criminal Appeal, Victoria.

57   The appeal was dismissed because the verdict on the second count showed that all members of the jury must have been satisfied that the appellant had driven negligently. However, the Court added at 453 -

In our view, a very different situation would exist where no such finding could be made. In that circumstance, we do not consider that a verdict of guilty could be properly sustained. …
We consider that the legislature cannot have intended the injustice involved in the acceptance of a verdict of guilt of an accused of the commission of a serious criminal offence, based upon quite disparate findings relating to the very foundation upon which the verdict rests. …
…
… in our view if there existed any reasonable possibility that the jury may have divided as earlier indicated and agreed, for practical purposes, only in the result, no true unanimity could be seen to exist.
We should add that we are not unmindful and have taken heed when making these comments of what was said by the Court in Clarke and Johnstone (1986) VR 643 at 661; 21 A Crim R 135 at 154:
‘It is sufficient that the law established by universal practice in this Court permits a jury to reach a verdict at the way the trial judge told the jury here. Homicide trials are a familiar example. The prosecution case of murder or manslaughter is often put in several ways involving different elements. It has never been the law that, before convicting, the jury must all be satisfied of guilt in the one way. The ordinary approach is consistent with the approach of this Court in Power (1960) VR 373 at 374.
…’
We do not understand the members of the Court on that occasion to have been suggesting, in a case which did not require them to address the question, that at the end of the day the only matter about which the jury must be unanimous in a criminal trial is the result.

58   There is strong authority in this State for regarding as good a conviction, particularly for manslaughter, which might have been reached by alternative processes of reasoning even where the jury have not been instructed that they must all agree about one or other of them.

59   In R v Isaacs (1997) 41 NSWLR 374 at 379 the Court of Criminal Appeal of this State enumerated reasons why, when a verdict of guilty has been returned and there are alternative bases for arriving at it, the jury should not in an ordinary case be asked about the basis for the verdict. Acknowledging the possibility of a good verdict where the jurors are not unanimous as to the alternative grounds upon which it might be reached, the Court said this at 379 -

Second, the jury’s response to any such question may be unclear. A response that indicated two grounds of decision might, depending upon the circumstances, indicate that the jury were unanimous on both grounds, or that some jurors adopted one ground, and the remainder adopted another. The response may create more uncertainty than previously existed.

60   The Court noted the opinion to the same effect of Roden J in R v Petrov (1980) 2 A Crim R 101 at 134-139.

61   The statement previously referred to in R v Clarke & Johnstone has been applied in R v Levidis (1990) 51 A Crim R 216; R v Eades (1991) 57 A Crim R 151 at 156. See also R v Muto & Eastey [1996] 1 VR 336 at 339.

62   In Alternative Elements and Included Offences [1984] Cambridge Law Journal 290, Professor Glanville Williams says at 291 -

Alternative elements may be called jurors’ alternatives; they do not present a choice between offences, for the jury as a whole, but relate to the ingredients of the offence. Jurors’ alternatives occur when jurors are presented with different paths by which they may collectively arrive at a single verdict. The most important example is manslaughter. Although theoretically a single offence carrying a single conviction, manslaughter can be committed in a variety of ways, and the jury need not, it seems, agree on any particular way. Six jurors may think the case is one of manslaughter by provocation and six may think that it is manslaughter by reason of diminished responsibility, but the conviction of manslaughter will be good.

63   These cases do not establish the principle for which the appellant contends. It states the relevant principle too widely to say that jurors who are trying a case of alleged manslaughter must be directed that, insofar as the Crown case relies upon suggested alternative bases for a finding of guilt, the jurors must be unanimous as to some one or more of the suggested bases before they can return a verdict of guilt based upon that basis or those bases. The relevant principle is still too widely stated even if there be added a rider that such unanimity is not required in a case where the accused must be liable on one or other of the suggested alternative bases, and it is impossible to say which.

64   The English, Canadian, Queensland and Victorian cases accord with those that bind this Court. They are highly persuasive and should be followed in this State.

65   A distinction is to be made between alternative factual bases of liability and alternative legal formulations of liability based on the same or substantially the same facts. The cases to which I have referred speak about the former. This appeal is about the latter.

66   The jury were obliged to consider the whole of the conduct of the appellant for the purpose of considering whether he caused the death of the deceased by his unlawful and dangerous act or by his gross negligence. Each process of reasoning invited by the Crown rested on substantially the same factual basis.

67   Of course, there were differences between the ways the Crown put the case factually on each basis. The main one was that the appellant was said for the purposes of his gross negligence (but not for the purposes of his unlawful and dangerous act) to have permitted the deceased to drive the car whilst she was not wearing a seat belt. But that fact was not irrelevant to the jury’s consideration of the appellant’s unlawful and dangerous act. Whether the deceased was wearing a seat belt was relevant to the questions whether she drove negligently, furiously or recklessly or in a manner dangerous to the public or whilst under the influence of alcohol.

68   It follows from what I have said that the jury must have agreed upon the basis upon which they found the appellant guilty. Using the terminology of Leivers & Ballinger, the alternative bases did not involve materially different issues or consequences. The appellant knew the case he had to meet.

69   This ground of appeal has not been made good.

70   The fifth and ninth grounds of appeal may be dealt with together. By the fifth ground it was asserted that the trial miscarried because his Honour’s directions about the use the jury might make of the evidence of the speed and the manner in which the deceased drove the car were confusing and contradictory. By the ninth ground it was asserted that his Honour erred in failing to exclude from the jury’s deliberations evidence of the appellant’s encouragement of the deceased and of the manner in which she drove on journeys not temporally connected with the one during which she was killed.

71   It was submitted on appeal that there were a number of journeys, separated by rests, that took place over a period of hours, and that it was necessary for the jury to distinguish between them.

72   Several passages of his Honour’s summing-up were criticised. After dealing with evidence about the speed of the car at stages of the afternoon earlier than that at which the fatal collision occurred, and the appellant’s encouragement of the deceased to drive faster, his Honour said -

The only possible relevance the urging by the accused “Faster, faster” could have on that journey is that it may have signified to the deceased that she could drive fast without incurring the displeasure of the owner of the car. I am not quite sure what you will make of that, remember you have to look at the elements of the offence strictly and the material time is the time in that journey leading up to the collision with the pole. But nevertheless when you are considering whether the accused aided and abetted Emma it is possible for you and I am not suggesting you should or you should not but it is possible for you to look at the way he conducted himself earlier in relation to those things because they may, in your mind, continue to amount to an encouragement for her to drive in that manner later on . That is a difficult matter, that is one you will have to think about, but if you are considering for example the aiding and abetting of her driving at a speed dangerous you have to consider her driving at the time just leading up to the collision with the pole. (Emphasis added.)

Now you have to ask yourself did he aid and abet her if there was any speed then and I am just not sure what my recollection of the evidence is that nobody says she was speeding at that time. You see that is where, I allowed the Crown to introduce that earlier evidence, I am not completely sure now whether that was right or not because I - there is no evidence that I can recall, we will come to it I guess, that suggests that Emma was speeding in that short journey just before the collision.
In other words was speed a factor in the collision at all, you really have to consider those matters very seriously. It is one thing to say that the speeding was taking place earlier but the strict question you have to ask yourself is was she speeding at the relevant time and did the accused aid and abet her to speed at the relevant time. If she was speeding at the relevant time and did the accused aid and abet her to speed at the relevant time. If she was speeding at the relevant time it is a matter of fact for you, not for me, but if she was, if you think there was evidence that she was speeding just before the car hit the pole. We will come to that, I myself cannot remember evidence of speed on that journey, indeed I think the witnesses that were asked said that the car seemed to be moving at a normal speed then. And I am talking about speed now, I am not talking about manner or driving under the influence, I am talking about speed only for the moment. But it there is evidence of speed just in the drive leading to the collision, then it is probably - it is possible and it is again a matter for you to ask yourselves whether the urging to go faster, faster that occurred earlier might have been still operating on her mind knowing that that is the way Bill like me to drive, fast. I mean I do not want to tell you what to think about this, I am simply tossing these thoughts around so that they are matters you do think about.

73   Later on, dealing with the evidence of Brett Cowan, his Honour said -

After the hat incident he said “The car ran off the road and rolled over. It happened seconds after Llewellyn gave her the hat, I do not know how many seconds. He could not remember L plates. He said that Bill look intoxicated to him at Bill’s property before they left. He said “Bill was drunk when he came out of the hotel, he was tripping”. He said the car was in the process of overtaking when Bill said “Faster, faster”, well you have to consider that. We do not know what happened we were not there but it is suggested, I take it, by the defence that Emma had got to a point of no return perhaps and being told to go faster, faster. I do not know but I am just saying these are the sorts of things you have got to think of because that seems to be the only point in the accused, through his counsel, suggesting through the witness too that the process of overtaking had already started when Bill said “Faster, faster.”
…
And remember that the relevant driving for the purposes of this case is the driving at the time of the collision, and sufficiently proximate to it to be regarded as the same driving episode.
…
… if you put aside the alcohol and just consider speed and manner dangerous, and look at what evidence there was of speed and manner dangerous in that at the time of the collision, and before it, you may find very scanty evidence in the facts of this case. I may be wrong, you heard the evidence, but I have just been through it again, and the evidence of speed or manner dangerous, or furious driving, or anything of that kind, at the time of the collision and the moments proximate to that, which are the relevant time, that evidence is, evidence of that sort of driving at that time is, it seems to me, almost non existent.

74   It was submitted that the evidence showed that any speeding was substantially earlier than the stage of the journey during which the fatal collision occurred. Not only was there no evidence of speed at the critical time, there was evidence that there was no excessive speed at that time. It was submitted that his Honour’s directions suggested that the appellant might be regarded by the jury as having continued to encourage the deceased to speed, a direction that was confusing because she was not speeding.

75   This submission is not borne out by an examination of the evidence. At the conclusion of the second-last journey the party returned to the appellant’s property. The deceased had been speeding. Adam Long had steered whilst sitting on the appellant’s lap and Llewellyn Long as he sat on the deceased’s lap. According to the evidence of Llewellyn Long in chief, when the party arrived at the appellant’s property he got out of the car and said -

This is far enough. You’ve nearly crashed and you’ve been drinking.

76   The deceased then said that they were going for a drive and the appellant proposed a journey that would bring them back to the starting point after twenty or thirty minutes. Llewellyn Long said -

I’ll get back in, but keep it under a hundred.

77   The deceased drove the car the 2.5 kilometres or so until it crashed.

78   In cross-examination there were these questions and answers -

Q. There was a discussion between you and Emma before you went further on in the journey wasn’t there?
A. Yeah.
Q. And you asked her to keep the speed under a hundred?
A. Yeah.
Q. And she agreed to it?
A. Yeah.
Q. And certainly from that point on there was no - you’re not suggesting that--
A. There was no drinking after that.
Q. No drinking but no Bill telling her to go faster?
A. No he didn’t say anything on that part.
Q. And as far as you were aware she seemed to be keeping to her word didn’t she?
A. Yeah.
Q. That is under a hundred?
A. I didn’t check the speedo after I told her to do that.
Q. But as far as you were aware from your being in the car?
A. Yeah.
Q. Is it the situation that she seemed to be sticking with what she’d promised, that is under a hundred?
A. Well I can’t really can’t remember, I didn’t look at the speedo after that, I just gathered - I just presumed Emma would’ve kept it under a hundred, I didn’t bother checking again.
Q. So there was nothing about the way she was driving that caused you to want to check?
A. No there was no comments from Bill either that made me want to check.

79   Brett Cowan said that at the appellant’s property Llewellyn got off the deceased’s lap and sat in the back of the car. The deceased started driving again. He continued -

Q. Did her manner of driving change after she’d got back into the car and started driving again, speed-wise, the way she drove, anything like that?
A. I think she drove faster.
Q. You think she drove faster?
A. Yep.

80   In cross-examination he said that he could not remember any conversation about keeping the speed under one hundred. He could not remember whether the appellant said anything to the deceased about driving faster. He was not asked about the speed at which the deceased drove. He said that she lost control of the car because she was swerving.

81   Adam Long said that at the end of the stage during which he had tried to bog the car the appellant suggested a drive to a village called Vacy. These questions and answers followed -

Q. Well can you tell us what happened after you left Bill’s property?
A. We started driving along Martins Creek Road and we got, I’m not sure how far in, when we came around a curve and we just started tumbling and turning all over the road.
…
Q. On this trip between Bill’s property and the accident site did you notice anything about the driving, first of all speed?
A. It was about the same all around the trip when we were on the main tarred roads.
Q. Between Bill’s place and the accident were you concerned about the speed the car was being driven?
A. Yes.
Q. I take it that’s because it was fast?
A. Yes.

82   In cross-examination he said this -

Q. Do you remember Llewellyn asking Emma to keep it under 100?
A. I can’t remember.
Q. Do you remember Emma saying she would, words to the effect “I will I’ll keep it under 100”?
A. I can’t remember.
Q. I think your actual memory of the accident is only that you went around a corner is that right?
A. Yes.
Q. Then the accident occurred?
A. At the speed we were going it was within seconds.

83   If they accepted the evidence of Brett Cowan and Adam Long, the jury were entitled to find that on her last journey the deceased drove at least as fast as she had done before.

84   His Honour made clear to the jury that they should not use evidence of the speed at which the deceased drove before going to the tavern to show the speed at which she drove immediately before the collision. The speed at which the deceased was driving the car at various times and the appellant’s encouragement were significant matters for the jury to consider on the issue whether the appellant aided and abetted the deceased’s illegal acts or was grossly negligent. In my opinion the evidence was relevant in the way his Honour indicated in the passage of the summing-up emphasised earlier in this judgment.

85   In my opinion these grounds of appeal have not been made good.

86   The seventh ground of appeal complains about his Honour’s directions about the duty of care owed by an owner of a motor vehicle to a person driving it.

87   The passage complained of is as follows -

Now negligence is a concept which I have to explain to you. Negligence only arises where there is a duty of care. Negligence arises where there is a duty of care and a breach of that duty of care and a duty of care can arise in all sorts of situations in our lives. When we drive a motor car we have a duty of care to the other users of the road or people in the proximity of the road, not to injure them or cause anything to happen to their detriment in the way we drive our motor car.
So if we drive our car so carelessly that we run off the road and run over a pedestrian, we would be guilty of negligence because we failed in our duty of care towards that pedestrian. Those people to whom we owe a duty of care are those people who may be adversely affected by the way we do something. It is very hard to see how I would have a duty of care to someone today walking on an Auckland street in New Zealand, there is not that proximity, not that relationship between us that could create a duty of care but there are all sorts of relationships including relationships of proximity which may give rise to a duty of care.
That is background information to you, what I tell you is that the owner of a motor vehicle who allows someone else to drive that vehicle has a duty of care towards that person which may be breached in a number of ways. And I can tell you that if the accused did permit the deceased to drive his motor vehicle whilst he was in it he had a duty of care towards her that may have been breached in a number of ways, that it was possible to breach in a number of ways and it would be open to you to find, it is a matter for you, that the owner of a vehicle who allows another person to drive it at excessive speeds on the public road is in breach of a duty of care to that person, may be to other people as well, of course duty of care may not end with that person it may include other users of the road and pedestrians, it may include passengers in the car. But the duty of care, you might think, would extend to withdrawing his permission to drive the car, but it might extend to withdrawing his permission to drive the car if the person refused to comply with basic safety rules, such as driving at a reasonable speed. I am not talking about speed limits now, they are technical things, I am talking about driving at dangerous speeds. I am talking about not wearing a seat belt. It is a question for you to decide whether you think there was a breach of the duty of care. What I am saying to you is that there was a duty of care, that is a matter that I, as the trial judge, have to determine. There is a duty of care on the part of the owner of a motor vehicle with someone else driving his motor vehicle, a vehicle over which he has authority, a vehicle which he can give permission to drive or refuse permission to drive.

88   It was conceded on appeal that a mature adult who permits a learner driver of the age of sixteen years and nine months to drive his car owes that driver a duty of care. The complaints in respect of this portion of the summing-up were that his Honour put the rule too broadly and that, insofar as his Honour spoke of the duty to withdraw permission to drive where the driver was not wearing a seat belt, the direction was inappropriate because there was no evidence that the appellant knew that the deceased was not wearing a seat belt and no evidence that could have satisfied the jury that the failure to wear a seat belt was a cause of the death of the deceased.

89   I do not think that the direction was put too broadly. Presumably defence counsel also thought the direction appropriate, because the point was not taken at trial.

90   In the way the trial was conducted the failure by the deceased to wear a seat belt was much less important than the evidence of the speed and the manner in which she drove the car and the appellant’s encouragement of her to do so, the while plying her with alcohol.

91   It is not correct to say that there was no evidence that the appellant knew that the deceased was not wearing a seat belt. He was seated beside her in the car and the jury were entitled to infer that he saw that she was not wearing a seat belt.

92   This ground of appeal has not been made good.

93   The eighth ground of appeal complains that the conviction was unsafe and unsatisfactory. In written submissions filed before the hearing of the appeal it was submitted that there was no evidence of excessive speed at the time of the collision and no direct evidence that the appellant knew that the deceased was a learner driver. The first submission was factually incorrect and there was no substance in the second.

94   Senior Counsel arguing the appeal submitted that there had been a miscarriage of justice because of the generally unsatisfactory nature of the summing-up. No particular part of the summing-up was referred to other than those dealt with in the other grounds of appeal.

95   In my opinion, on a reading of the summing-up as a whole, the jury were adequately directed. No further directions were sought by trial counsel. This ground of appeal has not been made good.

96 By ground 10 it was asserted that because of the way it put its case the Crown was not entitled as a matter of law to rely on the unlawful and dangerous act of the appellant. The argument was put in this way. Insofar as the appellant acted unlawfully it was because he was an accessory to the unlawful act of the deceased. It was therefore as an accessory that the appellant was convicted. The principal offence was manslaughter. However, since it was not an offence under the law of New South Wales for the deceased to kill herself - Crimes Act s 31A - no one had committed the principal offence. There could therefore be no accessorial liability.

97   It may be accepted that there can be no conviction of an accessory unless it is proved that the principal offence has been committed. Cain v Doyle (1946) 72 CLR 409; R v Anthony [1965] 1 All ER 440; Giorgianni v The Queen (1984-1985) 156 CLR 473; R v Demirian [1989] VR 97.

98   However, I think that the appellant’s submissions misconceive the nature of the Crown case. The Crown asserted that the appellant brought about the death of the deceased by any or all of his acts of permitting, assisting and encouraging the deceased to drive the car negligently, furiously or recklessly, too fast or under the influence of alcohol. As well as being dangerous, those acts were unlawful because they made him liable as an accessory to the offences he thereby permitted, assisted and encouraged the deceased to commit.

99   Although in order to prove unlawful the acts of the appellant upon which it relied the Crown wished to prove that they constituted accessorial offences, that was the only way in which the Crown relied upon his accessorial liability. The Crown never asserted that the appellant was responsible as an accessory to manslaughter. He was charged and convicted as a principal. Neither was it asserted that the deceased was guilty of the crime of manslaughter. The only offences alleged against her were the driving offences to which I have referred and they were proved, as I have said, in order to prove that the acts of the appellant in permitting, assisting and encouraging their commission were unlawful.

100   In my opinion this ground of appeal fails.

101   In the application for leave to appeal against the sentence imposed by his Honour it was submitted that the appellant was fifty-five years old at the time of the commission of the offence and fifty-eight years old when sentenced. He suffered brain damage in the accident and remembered none of it. Business colleagues gave evidence suggesting that his commission of the offence was out of character, though he had convictions for driving with the prescribed concentration of alcohol in 1976 and 1989.

102   The Court was referred to what were said to be comparable cases which demonstrated that the sentences were outside the permissible range. The first one was R v Youssef, Court of Criminal Appeal, 14 December 1991. The applicant swerved onto the wrong side of the road, mounted the footpath and struck a young girl, killing her, and injured another. The applicant had a bad driving record. The driving conditions were normal. A possible mitigating factor was that the applicant may have suffered an epileptic seizure at the time of the offence. This was a Crown appeal against a sentence of four months’ periodic detention. The appeal was dismissed.

103   The facts of that case were entirely unlike those in this appeal and I find it of no assistance.

104   The second case was R v Stevens, Court of Criminal Appeal, 13 August 1993. The applicant was stealing a car when the owner tried to stop him. The owner was killed as the applicant drove away. The applicant pleaded guilty, was eighteen years old, was of good character and was remorseful. On appeal his sentence was reduced to eight years, comprising a minimum term of five years six months and an additional term of two years six months.

105   In my opinion the objective facts of that case were far less serious than the present. It is difficult to imagine a more serious course of conduct than that followed by the appellant. What took place happened over a period of about three and a half hours and over a distance of thirty-five kilometres. The appellant was the only adult having the care of four children. He was aware that he was too drunk to drive and, in order to avoid the consequences to himself of drinking and driving, encouraged the deceased to drive. It was he alone who supplied alcohol and encouraged her to drink it. Three young children as well as the deceased were put at risk. Very high speeds were reached on the direct encouragement of the appellant to drive faster. All this was done in the face of the fear of the three boys, their entreaties and efforts to bring the career to an end.

106   As his Honour observed, the appellant exercised a strong moral influence over the deceased by virtue of his long experience and mature age and her inexperience and youth. The apparent careless attitude of the appellant to the matter of driving was especially dangerous.

107 In fixing the sentence his Honour referred to the offence of aggravated dangerous driving occasioning death, provided for in s 52A(2) Crimes Act, the maximum sentence for which is fourteen years’ imprisonment. His Honour observed that that was the crime which in his opinion most closely resembled the crime for which he was punishing the appellant and took fourteen years’ imprisonment to be a general guide to the current opinion of the Parliament concerning the maximum sentence for motor vehicle manslaughter.

108   His Honour erred in making that observation and that comparison. The offence for which his Honour was sentencing the appellant was manslaughter, a much more serious offence than aggravated dangerous driving causing death. The maximum penalty was penal servitude for twenty-five years. His Honour’s error favoured the appellant.

109   In my opinion this case was of such a serious nature as to be seen as falling into the worst category of cases of its kind. The sentence imposed was not manifestly excessive.

110   I propose the following orders -

1. Appeal against conviction dismissed;
2. Leave granted to appeal against sentence; appeal against sentence dismissed.

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