R v EDMUNDSON - [2006] SASC 279

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v EDMUNDSON
[2006] SASC 279
Reasons for Ruling of The Honourable Justice Layton
6 September 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - ALTERNATIVE VERDICTS
Whether or not the offence of culpable driving causing bodily harm pursuant to s 19A(3) should be left as an alternative verdict to the offence of attempted murder - whether reference to "murder and manslaughter" in s 19B includes attempted murder - Held: s 19B does not included attempted murder - culpable driving under s 19A not left to the jury.
Criminal Law Consolidation Act 1935 s 19A(3), s 19B and s 75; Acts Interpretation Act 1915 s 22, referred to.

R v EDMUNDSON
[2006] SASC 279
Criminal

LAYTON J: After the close of evidence and before the commencement of submissions, counsel for the accused submitted that I should leave the alternative verdict of culpable driving causing bodily harm pursuant to s 19A(3) of the Criminal Law Consolidation Act 1935 (“the CLCA”) to the jury. Counsel relied on s 19B(1) as the basis for this submission. After hearing submissions from counsel I ruled that s 19A(3) would not be left to the jury. I now take the opportunity to publish brief reasons for that ruling.
Section 19A(3) relevantly provides:
(3)     A person who—
(a)     drives or rides a vehicle … in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to the public; and
(b)     by that culpable negligence, recklessness or other conduct, causes a bodily harm to another,
is guilty of an indictable offence.
Section 19B relevantly provides:
(1)If at the trial of a person for murder or manslaughter the jury is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of the offence constituted by section 19A(1) or (3), the jury may bring in a verdict that the accused is guilty of that offence.
(2)The following offences (which are listed in order of seriousness) are offences to which subsection (3) applies:
(a) the offence constituted by section 19A(1);
(b) the offence constituted by section 19A(3);
…
(3)If at the trial of a person for an offence to which this subsection applies (being an offence mentioned in subsection (2)(a) or (b)) the jury is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of a less serious offence to which this subsection applies, the jury may bring in a verdict that the accused is guilty of that less serious offence.
The essential argument of counsel for the accused was that the reference in s 19B to “murder or manslaughter” included the offence of attempted murder. It was submitted that unless the section included attempted murder, then the reference in s 19B to s 19A(3) gave no work for s 19A(3) to do. That was because both murder and manslaughter required death as an outcome whereas s 19B(3) required bodily harm only.
The argument put forward by counsel for the accused did not require there to be a consideration of the particular facts in this case, it was addressed solely as a matter of the construction of the relevant sections and the offences with which the accused was charged.
Counsel for the prosecution submitted that the alternative verdict of culpable driving causing bodily harm did not arise because s 19B specifically addresses the offences of murder or manslaughter and does not specify that it applies to a person on trial for attempted murder. It was submitted that it was not appropriate to read into the section words that Parliament could easily have put in itself, but did not.
Counsel for the prosecution referred to the well-known principle of the mischief rule and further referred to s 22 of the Acts Interpretation Act 1915.
Section 22 of the Acts Interpretation Act provides:
(1)Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
(2)This section does not operate to create or extend any criminal liability.
Counsel for the prosecution submitted that if the interpretation contended for by counsel for the accused was to apply, it would have the effect of extending the criminal liability of an accused charged with attempted murder by exposing them to conviction for the alternative offence under s 19A(3). Further, that if the construction contended for by the counsel for the accused could arguably be open, it should not be the preferred construction because of this potential outcome. It was therefore submitted that s 19B should not be interpreted as including attempted murder.
In relation to the first of the submissions of counsel for the prosecution, I note s 75 of the CLCA which provides:
If on the trial for rape or unlawful sexual intercourse, or an attempt to commit rape or a lawful sexual intercourse, the jury—
(a)is not satisfied that the accused is guilty of the offence charged; but
(b)is satisfied that the accused is guilty of an indecent assault or a common assault, or an attempt to commit indecent assault or a common assault (the lesser offence),
the jury must find the accused not guilty of the offence charged, but may find the accused guilty of the lesser offence.
Whilst this section is clearly in a different context, it is an example where Parliament expressly indicated that the alternative verdict was to apply not only to the offence but also an attempt to commit the offence. This would tend to support the argument that if Parliament had intended that murder include attempted murder in s 19B, it could easily have said so.
Turning now to the mischief, little can be gleaned from the second reading speech on the particular issue which arises for consideration here. The second reading speech refers to the problems of the number of people killed or maimed on roads and continues:
This Bill, which addresses a number of matters related to dangerous driving, increases the penalties for dangerous driving where the offence has caused death or injury. It provides for an offence of causing death by dangerous driving as an alternative to manslaughter, and that is a very important addition to the law. It provides for multiple offences to be charged where multiple deaths or injuries occur: again, a notable addition to the law.
It removes the state of mind situation which has dogged the law for many years, in that hitherto it has been some form of defence under the law that a person was not capable of exercising judgment and certain actions of those people have somehow been excused under the law.[1]
[1] South Australia, Criminal Law Consolidation Act Amendment Bill (No 2) Second Reading Speech, House of Assembly, 20 November 1986, 2194 (Mr S J Baker).
The mischief to which the sections are addressed is death on the one hand, and bodily harm on the other. Section 19B is certainly unhappily worded bearing in mind the juxtaposition of the words “murder or manslaughter” with the offence under s 19A(3), which relates to causing bodily harm. There are very limited circumstances indeed in which, on the trial of a person for murder or manslaughter, it may be open to the jury to bring in a verdict of causing bodily harm rather than death. One possible example would be if there was a novus actus which intervened such that the resultant death could not be attributed to the conduct of the accused. This would give s 19A(3) very limited work to do.
However, I am not persuaded, in the absence of explicit wording to include “attempted murder”, that the section should be interpreted as extending criminal liability where it is not explicitly indicated. I therefore consider that s 19B does not apply if a person is on trial for attempted murder rather than murder or manslaughter. On that basis I do not consider that it is appropriate to leave to the jury the offence of culpable driving causing bodily harm as described in s 19A(3) of the CLCA as an alternative verdict to Count 1.