R v Guthrridge

[2010] HCATrans 328

[2010] HCATrans 328

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M91 of 2010

B e t w e e n -

THE QUEEN

Applicant

and

SHAUN GUTHRIDGE

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 2010, AT 12.20 PM

Copyright in the High Court of Australia

MR T. GYORFFY:   If it please the Court, I appear with my learned friend, MR B.L. SONNET, on behalf of the applicant.  (instructed by Solicitor for Public Prosecutions)

MR P.G. PRIEST, QC:   If it please the Court, I appear with my learned friend, MR M.J. CROUCHER, for the respondent.  (instructed by Leanne Warren and Associates)

FRENCH CJ:   Yes, Mr Gyorffy.

MR GYORFFY:   Your Honours, we have filed fairly substantial submissions ‑ ‑ ‑

FRENCH CJ:   Can I just ask one question?  It may be there somewhere and I may have missed it, but did the Court of Appeal deal at all with ground 3?  In other words, was there a ground left floating?

MR GYORFFY:   A ground left floating related to complicity, your Honour.

FRENCH CJ:   No, this is leaving to the jury the alternative count, I think, is it not?

MR GYORFFY:   I must say, I do not know the answer to that offhand, your Honour.  I understood that that had been dealt with.  There was the issue where they went on to look at complicity, and they were satisfied that aiding and abetting applied.  They left open two questions.  One was whether there was concert, and the second question that was left open was whether the case could be put as a straight causation case, that is a fact of the vehicle being on the road is, in a strict Royale-type situation, a cause of what occurred. 

The real point here is that the applicant submits that dangerous driving has been an offence that has been around since the turn of the last century.  All of the dangerous driving provisions around Australia have their genesis in the provision in the United Kingdom at the turn of the last century and dangerous driving over the turn of the 20th century came to be pretty well understood, the most authoritative statement on it being in McBride’s Case. 

What is submitted here is, if one looks at the charge that the judge applied, it complies with McBride, perhaps goes a bit further than McBride in that it does give a gloss on the concept of danger by introducing some harm.  But it would comply, it is submitted, with McBride.  Now, what the court did in this case was - when the judge heard the case, De Montero had not been decided.  This case came on for appeal, and De Montero still had not been decided.

FRENCH CJ:   It was handed down a few days after the hearing, was it not?

MR GYORFFY:   Four days after the hearing De Montero was decided and the court then went on to say that following De Montero – and we will not worry about the argument that was put in this case about the appropriate test ‑ ‑ ‑

FRENCH CJ:   Before you go any further, Mr Gyorffy, I suppose the matter which, on the face of it, concerns one is the protraction of these proceedings.  We have an offence which is said to have occurred in, I think, December 2005.  We had a trial in April 2008, sentencing in June 2008, notice of appeal in June 2008, appeal not heard until October 2009, and although Montero was handed down, as you say, a few days after that, this position of the appeal did not occur until orders were made without reasons in March 2010, and then reasons published in June 2010.

MR GYORFFY:   Yes.

FRENCH CJ:   Of course, the orders made have the effect of quashing the conviction and no retrial – just what allowance should we make in our consideration of whether, even if there be some issue of principle about the correctness of the direction in this case, special leave should be granted, having regard to the interests of justice, looking at the delay that has occurred in this whole exercise?

MR GYORFFY:   Your Honour, we have attempted to address that by indicating that the Crown does not ‑ ‑ ‑

FRENCH CJ:   I know you make some undertaking, but even allowing for that ‑ ‑ ‑

MR GYORFFY:   That is there to address that very point, your Honour.

FRENCH CJ:   Yes.

MR GYORFFY:   This is a situation that unfortunately has occurred on other occasions in this Court, this timetable is not an unusual one.  What we have attempted to do is ‑ ‑ ‑

FRENCH CJ:   We have a Crown appeal against what is effectively an entered acquittal from the Court of Appeal.

MR GYORFFY:   Yes, and the main point of that appeal is whether the test that was applied was the correct test or not and ‑ ‑ ‑

BELL J:   Can I raise this with you?

MR GYORFFY:   Yes, your Honour.

BELL J:   The Court, as I understand it, was critical of the trial judge’s directions that are extracted at application book 354 and, in particular, the last two paragraphs of the extract of his Honour’s directions that appears on that page.

MR GYORFFY:   Yes.

BELL J:   On one view, the concern was in the way the primary judge put the matter, emphasising that the test did not require the accused to have driven in a way that significantly increased the risk, and then his Honour went on to point out that the test did not require consideration of whether the driving was deserving of criminal punishment.  The effect of that part of his Honour’s direction in the view of the Court of Appeal was to fail to sheet home to the jury with sufficient clarity the quality of driving in a manner dangerous necessary to sustain a conviction.

MR GYORFFY:   Yes.

BELL J:   Without getting into the finer points of distinction in the context of the Victorian scheme of three driving offences in graded levels of seriousness that raise considerations of questions of manner dangerous, there might be some substance, might there not, to a view that it was right to see that there was a deficiency in the directions?  This case may not be a good occasion to raise the broader questions of principle that really relate to your challenge to De Montero.

MR GYORFFY:   We would submit no, your Honour, for this reason.  It is paragraph 19 where that is set out, which is page 358 of the appeal book ‑ ‑ ‑

BELL J:   Yes.

MR GYORFFY:   ‑ ‑ ‑ where that is set out in the judgment and it is the characterisation of what constitutes dangerous driving that is the issue.  What the Court said was because you have characterised dangerous driving in a way which is – they have not said this, but it follows – in a way consistent with McBride, and not consistent with De Montero, that, coupled with the fact that you have said that it does not have to be of a degree of seriousness to warrant criminal punishment, that you have watered down the degree of dangerousness.

BELL J:   But it all depends – if one moves away from the idea of giving directions that are in the form of a mantra, you say that the suggestion is of a watering down of directions that were consistent with McBride.  The point that the Chief Justice in McBride was emphasising in relation to driving in a manner dangerous was a quality to the conduct of the driving altogether different to considerations that apply in compensating another for an act of negligence.

MR GYORFFY:   He went further than that though, your Honour, in the sense that he gave a meaning to “dangerousness” and what this Court of Appeal has done has elevated that meaning beyond what is accepted for dangerous driving in all jurisdictions around Australia to something that is akin, or even higher than, the test for manslaughter.

BELL J:   The matter that I am bringing you back to is the conclusion that the court reached in this case, that the primary judge’s directions were insufficient to draw to the jury attention to matters including the – what I might just describe generally as the gravity of dangerous driving, in contrast to driving in a manner that falls short of the standard of care required, and that would lead to civil liability.

MR GYORFFY:   What I am submitting to your Honour is that they were not saying that.  What they were saying was that the test of dangerousness is the considerable risk of serious injury or death, whereas cases that followed McBride have a lesser degree.  It is a question of danger, and in some jurisdictions, they go beyond simply danger and describe that as being a risk of injury.

BELL J:   McBride was a case dealing with culpable drive, as it then stood, under the New South Wales legislation.  I think the Court of Appeal here in a considered judgment in De Montero was addressing a statutory scheme where one has culpable driving, then an offence between that and the lowest order of offence being the dangerous driving offence with which we are presently concerned.

MR GYORFFY:   It is submitted that that is an interesting submission put by our learned friends, but it is not the reality.  The reality is this – that in every jurisdiction there is an element in the dangerous driving legislation which says negligently causing by a speed that is dangerous or by a manner dangerous.  They are lumped together in the different statutes.  The point though is that they are different offences.  There are three or four ways of committing that offence. 

What has happened in Victoria was that a statutory provision was developed which dealt with the negligent aspects and recklessly causing death and then there was a big gap and the next level of offence was dangerous driving.  What Parliament did was it introduced something in between those two levels, the purpose of that being that dangerous driving, where a particular consequence occurs, either a death or serious injury, is punished at a particular level.  It is not an introduction of a third tier, as such.  It is simply extending what was there on the bottom tier to cover two other situations.

BELL J:   The matter that I am raising with you at the moment is that when the 2004 offence was introduced into the scheme in Victoria you had, did you not, the most serious offence being culpable driving, then you had the dangerous driving offence and then you had a more minor offence, the name of which I presently forget.

MR GYORFFY:   Careless driving.

BELL J:   Yes.  Now, when, for example, you produce in your chart at application book 413, the New South Wales provision of dangerous driving occasioning death – that now is the provision that replaced what in New South Wales was called culpable driving.

MR GYORFFY:   Yes, but it replaces it in the context of the jurisprudence that describes what dangerous driving is and what “dangerous” means in the context, and that is the jurisprudence that has been changed by this decision of De Montero and it is submitted that that is not the intention of the legislation.  If your Honours look at page 398 of the application book, paragraph 3.4, last paragraph in the second reading speech in relation to the introduction of that Bill in 2004, it said:

To establish this offence the prosecution will not be required to prove criminal negligence, which is required to prove culpable driving causing death.  Rather, to establish the new offence, the prosecution will have to prove that the accused drove at a speed or in a manner dangerous to the public –

That was the wording of section 64 of the Road Safety Act which was the dangerous driving provision.  The point that we make is that what Parliament intended was that dangerous driving remain as dangerous driving in terms of the measure by which one determines culpability, but that the penalty imposed vary according to what consequence comes from the dangerous driving. 

The submission that we make is that the test that was applied by his Honour conforms with the way that dangerous driving is described in every other State in this country and what happened is a decision came in which said no, you do not describe it in that way.  You now describe it in terms that are akin to manslaughter, and what we say is that that decision, in changing dangerous driving to a manslaughter test, is what is wrong in the De Montero decision, and it is what is wrong in the application here.

BELL J:   I understand you challenge De Montero in these proceedings, effectively ‑ ‑ ‑

MR GYORFFY:   Yes.  We could not before.

BELL J:   But I come back to the point that on a view of it, the primary judge’s directions may not have conveyed the import of an offence of dangerous driving, as the statutory provision provides consistently with McBride.

MR GYORFFY:   That is not what the Court decided.  It is our submission that the judge’s charge does.  In fact, it has all the elements of McBride in it.  Your Honours will find at page 230 of the appeal book, and going through to 233, and he sets out the elements between lines 2 and 9, and then he goes, at line 17 on page 230:

The second element is that the prosecution must prove that the particular accused was driving dangerously.

That is the way it is described in other States –

That is that he was not properly controlling his vehicle, thereby creating a real risk that somebody would be hurt . . . The law says that the risk of harm created by the accused’s driving must have been greater than the risk of harm ordinarily associated with driving.

That is the point in McBride.  That is the main point coming out of McBride.

BELL J:   I am sorry, where are you now?

MR GYORFFY:   That was page 230, lines 27 to 29.  It goes over the page, and at line 8 goes on, at 231:

For this element to be satisfied the accused must have driven at a speed or in a manner that has significantly increased the risk of harming others.  This could be because it increased the likelihood of a collision or because it made it more likely that any injury suffered in a collision would be serious.

Again, it is setting out a seriousness well beyond negligence simpliciter.  He talks about the potential road users, which again comes from the cases, and at line 25:

This element will be satisfied if a reasonable person in his situation would have considered his speed or manner of driving to be dangerous regardless of what he himself believed.

Again, that comes straight out of McBride.  Over to 232, that is where he gets into trouble with the Court of Appeal, because then he says:

there are two important differences that reflect the fact that culpable driving is the more serious offence.

That is when he raises –

while the test for dangerous driving requires the accused to have driven in a way that significantly increased the risk of harming others, there does not need to have been a high risk of death or serious injury; that is only a requirement for culpable driving.

In our submission, that is right, if you apply McBride.  That is correct, because it is a proper distinction, the statute versus what the test is for culpable driving, and then –

Secondly, unlike the test for culpable driving, the test for dangerous driving does not require you to consider whether the driving is deserving of criminal punishment which you will remember was one of the elements that needed to be satisfied for culpable driving.

That element needed to be satisfied in culpable driving because of criminal negligence.  The test of criminal negligence is such at falling short of the conduct expected of a reasonable person as to be warranting of criminal punishment.  There is no such warrant in dangerous driving.  Dangerous driving is committed in the way stated in the statute and, his Honour submitted, did in fact comply properly with those authorities.  So that is what this comes down to, in a nutshell.  Yes, your Honour.

FRENCH CJ:   Yes, thank you, Mr Gyorffy.

MR GYORFFY:   I thought her Honour Justice Bell wanted to say something to me.

BELL J:   There was a submission – you said the difficulty was that McBride dealt with a notion of criminal negligence, and I was just

wondering where you got that from.  I was looking at 52A of the Crimes Act with which the Court was concerned in McBride.

MR GYORFFY:   What was said was dangerous driving needs to be distinguished from mere criminal negligence.  That was one of the aspects of it.

BELL J:   Yes, I understand.

MR GYORFFY:   What his Honour has done here in the charge, when looked at as a whole, he has done that.  We did not include it in the materials.  If it would assist the Court, we have copies from the bench books for New South Wales, Queensland and Victoria in relation to how the element of dangerousness is dealt with in each of those jurisdictions.  If it would assist, I seek leave to hand that up to your Honours.

FRENCH CJ:   I do not think we will be assisted by that.

MR GYORFFY:   So that is the essence of it.  What is submitted is that the De Montero test introduces elements of seriousness that are way beyond what the statute requires, and it is plainly wrong for that reason.

FRENCH CJ:   Yes.  Yes, Mr Priest.

MR PRIEST:   There are two fallacies that permeate our friend’s submissions, one of which has been repeated here orally.  The first fallacy is that dangerous driving causing death does not fit into a unique statutory regime in this State.  It is plain that it does.  The second fallacy that permeates our friend’s submissions is it is said the test for dangerous driving causing death, as interpreted by the court in De Montero, imposes a higher standard than for manslaughter.  Now, both of those, with respect, are demonstrably wrong, and we will take the Court to the reasons for that in a moment. 

To answer your Honour the Chief Justice’s question to my friend at the beginning of his submissions, ground 3 was left hanging.  There has been no decision on it, and more importantly, from our point of view, the question of concert was also left hanging by the Court.  They did not determine that, and importantly, we would submit, this is something that would need to return to the Court of Appeal so that they could deal with that aspect of it.  The Court was otherwise minded to accede to what has been put by our friends.

Your Honours, so far as the unique position of dangerous driving causing death in Victoria is concerned, if one looks at the statutory regimes in every other State and Territory, there is no intermediate which is now filled by dangerous driving causing death.  That is important for this reason.  The court here had to determine where dangerous driving causing death fell in between those two extremes and craft directions that could be given to a jury in order to explain to them sufficiently the differences between the different offences.

Your Honours, I know that the parties have not provided the Court with the various sections. I have simply referred to them in the written material and we set out at footnote 11 of our written submissions the various statutory provisions. The Court will find that at page 408 of the application book and it is repeated to some extent in our friend’s reply, in the addendum to it, but if one looks at New South Wales, for example, the highest form of culpability is dangerous driving, section 52A of the Crimes Act. 

There, there are three forms of culpability: driving under the influence of intoxicating liquor at a speed dangerous to another person, or in a manner dangerous to another person. It fills the same spot as culpable driving does in this State. Interestingly, and I would take a guess that your Honour Justice Bell is more familiar with section 52A than the Victorian provision, unlike the Victorian provision there does not have to be a causal connection between the driving and death and there immediately, your Honours, is a distinction between the New South Wales regime and the Victorian regime. To take up the second fallacy, to establish manslaughter by gross negligence the risk that is involved is a high risk that death or serious injury will result.

BELL J:   That is Nydam.

MR PRIEST:   That is Nydam, your Honours.  So far as manslaughter by an unlawful and dangerous act is concerned, it is only necessary to show an appreciable risk that death or serious injury might result, but there is an added element.

BELL J:   An unlawful act.

MR PRIEST:   An unlawful act.  So, with respect, it is simply wrong to say that the test for dangerous driving is more stringent than that for manslaughter.  Can I take the Court then to the parts of the application book, the judge’s charge that our friend has recently taken the Court to, at application book 231 and 232 and direct the Court’s attention again to 232, line 9. 

With respect, his Honour significantly diluted the seriousness of the driving that was required in order to establish dangerous driving by giving the direction that follows from line 9 and following.  In the context of a case

where you will always, on a trial – or almost always – have a case of a charge of culpable driving, a statutory alternative, dangerous driving causing death, it is important that the seriousness of the driving for dangerous driving causing death not be diluted in the way in which his Honour has given the direction at page 232.

Your Honours, we would say with respect, the Court of Appeal in De Montero had to find the place where dangerous driving causing death falls in the hierarchy.  They looked at all previous authority, and arrived at a reasoned decision, with respect, which appropriately spells out where dangerous driving causing death ought fall.

Now, your Honours, one final matter.  We repeat, with respect, our submissions at pages 403 to 405 of the application book the reasons why special leave ought to be refused, but could we in particular urge upon the Court the question of delay in this case.

FRENCH CJ:   Is any of this delay attributable to the respondent?

MR PRIEST:   No, your Honour.  Other than simply this case taking its ordinary course through the courts, he is not at fault.  Can I correct one error that we have perpetuated unhappily?  At paragraph 1.7, application book 404 at line 20, we have perpetuated the error of the Court of Appeal that he was 21 at the time of driving.  He was 18.  He is now aged 23, so there has been five years or more since the incident that brought him to the court, and bringing before the Court of Appeal ultimately.

Were this Court minded to grant special leave, the appeal would not get on until some time next year, with a further period of uncertainty unhappily hanging over his head.  A very great delay in our submission is reason alone, if not taken with the other reasons, why special leave ought to be refused.  If the Court pleases.

FRENCH CJ:   Yes, thank you.  Yes, Mr Gyorffy.

MR GYORFFY:   Just one matter, your Honours.  My learned friend talks about the culpability being watered down or diluted.  If one looks at page 356 of the application book, that is where the passage is set out in the judgment in the Court of Appeal about what has to be put into the charge and the full paragraph around line 10 talks about the distinction. 

Now, the fundamental problem is no jury could understand what that distinction means, because what they have done is they have said it is negligence and they have created a second tier of criminal negligence.  The point about saying, with negligence, that it must be of a degree that warrants

criminal punishment, is it is those words “warrants criminal punishment” that defines the extent of the obligation.

What they have done here is they have said “We cannot tell you how you are going to decide between dangerous driving and how you are going to decide between culpable driving, but we can tell you that culpable driving is more serious”.  That is because they have started off at the wrong point with the test.  It is not the case of his Honour diluting, in the course of his charge, what the true test was.  The problem is that this test leads to a confusion where dangerous driving is equated with criminal negligence and then there is an attempt to create a second layer of criminal negligence which cannot be explained to a jury.  It is for that reason, it is submitted, that the Court should look at this.

FRENCH CJ:   Thank you. 

The Crown applies for special leave to appeal on the basis that the Court of Appeal relied upon erroneous criteria for setting aside a conviction for dangerous driving causing death contrary to section 319 of the Crimes Act 1958 (Vic). The criteria were those set out in the court’s decision in R v De Montero which were said to have set an erroneously high threshold of criminal liability.  We do not express any concluded view on that contention.

Whatever the merits of the Crown’s contentions, in our opinion they are outweighed in this case by the delays in the process which have led to the entry by the Court of Appeal of an acquittal in favour of the respondent.  The offence was said to have been committed in December 2005.  The respondent’s trial concluded on 24 April 2008.  He was sentenced on 19 June 2008 and filed a notice for leave to appeal on 26 June 2008.  His appeal was not heard until 26 October 2009.  Orders allowing his appeal were made on 25 March 2010 and reasons for those orders published by the Court of Appeal on 9 June 2010.

The record does not disclose any explanation for what must be, on any view, unacceptable delays in terms of the time taken to bring the appeal to hearing and thereafter to disposition and publication of reasons.  There is no suggestion that the respondent was responsible in any way for these delays.  The Director of Public Prosecutions has indicated that should he be granted special leave and his appeal be successful, he would not seek the return of the respondent to custody and would consent to the Court of Appeal resentencing him to an appropriate sentence to achieve that outcome. 

Notwithstanding that offer, we are of the view that the delays are such that it would not be in the interests of justice to grant special leave to appeal to the Crown in this case.  Special leave will be refused with costs.

AT 12.55 PM THE MATTER WAS CONCLUDED