R v Horscroft - [2009] SADC 125

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HORSCROFT
Criminal Trial by Judge Alone
[2009] SADC 125
Reasons for the Verdict of His Honour Judge Boylan
16 November 2009
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS
Defendant charged with Causing Death by Dangerous Driving and Leaving the Scene of an Accident After Causing Death by Careless Use of a Vehicle. Pleaded: Guilty to Driving Without Due Care and Attention in satisfaction of first count; not guilty to second count. Two issues to be decided at trial:
1. Was the defendant unaware on reasonable grounds that her car had hit a person?
2. If the defendant was so unaware, is that lack of awareness a defence to the charge?
No dispute that defendant knew that her vehicle had been involved in a collision.
Verdict: Not Guilty to Count 2
Held: The defendant's unawareness of her involvement in an accident causing death was reasonable in the circumstances and that unawareness is a complete defence to the charge.
No dispute
Australian Road Rules R287; Criminal Law Consolidation Act 1935 S.19AB; Road Traffic Act 1961 S43, referred to.

R v HORSCROFT
[2009] SADC 125

On the night of 6 September 2007, Jacqueline May Horscroft was driving a friend’s car along Diagonal Road at Somerton Park. At a time when she had taken her eyes off the road, the car struck and killed Mr Edward Hyland, who had been standing in the roadway. Ms Horscroft knew that she had been involved in some sort of collision; she thought that she had hit a stationary car. She claims she had no idea that she had hit a person. She drove on. As a result of her driving and Mr Hyland’s death, she was charged with two offences: Causing Death by Dangerous Driving and Leaving the Scene of an Accident After Causing Death by Careless Use of a Vehicle. She pleaded not guilty to the first of those charges but guilty to the lesser, alternative charge of Careless Driving. The prosecution accepted that plea in satisfaction of that charge. She pleaded not guilty to the second charge and elected for trial before me without a jury. Most of the facts were not in dispute. I was asked to decide two issues only. First, was Ms Horscroft unaware on reasonable grounds that her car had hit a person? Secondly, if she was so unaware, is that lack of awareness a defence to the charge? In my view, Ms Horscroft has made out a defence. I find her not guilty. I set out my reasons beginning with the Statement and Particulars of the offence and the relevant legislation.
Statement of Offence
Leaving Accident Scene after Causing Death by Careless Use of Vehicle. (Section 19AB(1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Jacqueline May Horscroft on the 6^th day of September 2007 at Somerton Park, drove a motor vehicle without due care or attention and by that conduct caused the death of Edward George Hyland and failed to satisfy the statutory obligations as a driver of a vehicle in relation to the incident.
Section 19AB of the Criminal Law Consolidation Act reads, where relevant, as follows:
19AB—Leaving accident scene etc after causing death or harm by careless use of vehicle or vessel
(1)    A person who—
(a)drives a vehicle or operates a vessel without due care or attention; and
(b)     by that conduct, causes the death of another; and
(c)fails to satisfy the statutory obligations of a driver of a vehicle or an operator of a vessel (as the case may be) in relation to the incident,
is guilty of an offence.
Maximum penalty:
(a)where a motor vehicle or motor vessel was used in the commission of the offence—
(i)for a first offence—imprisonment for 15 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 10 years or such longer period as the court orders;
(ii)for a subsequent offence—imprisonment for life and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 10 years or such longer period as the court orders;
…
(3)    For the purposes of subsection (1) and (2)—
(a)a person fails to satisfy the statutory obligations of a driver of a vehicle in relation to an incident if the person commits an offence against section 43 of the Road Traffic Act 1961 in relation to the incident;
…
The relevant parts of Section 43 of the Road Traffic Act read as follows:
43—Duty to stop, give assistance and present to police where person killed or injured
(1)    The driver of a vehicle involved in an accident in which a person is killed or injured must—
(a)     immediately after the accident—
(i)     stop the vehicle; and
(ii)    give all possible assistance; and
(b)not more than 90 minutes after the accident, present himself or herself to a police officer at the scene of the accident or at a police station for the purpose of providing particulars of the accident and submitting to any requirement to undergo a test relating to the presence of alcohol or a drug in his or her blood or oral fluid.
Penalty:
(a)    imprisonment for 5 years; and
(bdisqualification from holding or obtaining a driver's licence for such period, being not less than 1 year, as the court thinks fit.
…
(3)    It is a defence to a charge of an offence against subsection (1) to prove that -
(a)the defendant was unaware that the accident had occurred and that the defendant’s lack of awareness was reasonable in the circumstances; or
…
Section 5 of the Road Traffic Act, 1961, where relevant, reads:
“5 – Interpretation
(1) In this Act, unless the contrary intention appears –
“accident” includes –
(a) a collision between 2 or more vehicles; or
(b)any other accident or incident involving a vehicle in which a person is killed or injured, property is damages, or an animal in someone’s charge is killed or injured;
…”
The trial was unusual. There was no dispute that Ms Horscroft, while she knew that her vehicle had been involved in some sort of collision, was unaware that anybody had been killed or injured. In those circumstances, most facts were agreed. A number of witness statements were tendered and I heard evidence from a few witnesses only. I deal with them first.
With one exception I find that all of the witnesses, including the accused, were honest and reliable. The exception is Mr Steven Johns, a passenger in the car. He was a most unsatisfactory witness and, where his evidence differs from that of the accused, I prefer the evidence of the accused. In my view, Steven Johns was determined to avoid giving any evidence about the accident. He claimed, time and time again, that he could not recall events or conversations. I do not accept that claim. I shall say more about those matters after I have made my findings of fact.
The collision occurred at about 11 o’clock on the night of Thursday 6September 2007. Mr Edward Hyland, who was 85, was severely injured and died in hospital as a result of his injuries, shortly after 2 o’clock the following morning.
Mr Hyland lived on Diagonal Road. At about 11 o’clock on the night of the 6 September 2007, his car was parked outside his address. There is no direct evidence before me of his movements earlier in the night. Immediately before the collision he was standing close to the driver’s side of his car, probably in line with or very slightly behind the “B” pillar. He was dressed in a dinner suit: black jacket and trousers. He was wearing a white shirt.
I turn now to Ms Horscroft’s movements on the 6 September. On that evening, Ms Horscroft had a meal with her son at about 7 o’clock. She then had a telephone conversation with her friend, Barry Higgins, who asked her to join him at the Warradale Hotel. She had no money. He told her that he would pay for her taxi to the hotel and buy her some drinks. As it turned out, her son gave her $50. She travelled by taxi from her house at Morphett Vale to the Warradale Hotel, arriving there at about 8 o’clock. She spent the next few hours talking and drinking with a number of people including Barry Higgins and Steven Johns, a man whom she met for the first time that night. Security video shows that, at the hotel, she drank six glasses of Scotch and Coke. Each of them contained a standard measure of Scotch. Barry Higgins had been at the hotel since at least 5.30 p.m when a bar attendant came on duty. From that time, at least, he was drinking cans of VB, full strength beer, and had had ten to twelve cans between 5.30 and his leaving the Warradale Hotel. Steven Johns was drinking pints of light beer. I do not know how many he had. At Higgins’s suggestion, he, Johns and the accused left the Warradale at about 10.45 p.m. Higgins had suggested that they go to the Watermark Hotel at Glenelg.
The accused and the two men walked from the Warradale Hotel out to the car park. Higgins’s car, a Toyota 4 Wheel Drive Hilux, was parked there. He went to get into the driver’s seat but was unable to do so. In the accused’s view, he was too intoxicated to drive. She had never driven Higgins’s car. She suggested, first, that the three of them get a taxi. Higgins refused. She then suggested that they go on the Community Bus. To that suggestion, Higgins and Johns both replied that Bob – the driver of the bus – would kill them all. They refused to consider catching the bus. Higgins said “I’m taking my car”.The accused, who considered that she was fit to drive agreed to do so. She got into the driver’s seat, Higgins into the front passenger seat, and Johns into the rear seat behind Higgins The vehicle was an automatic four wheel drive coupled to a transfer case with “high” and “low” range and had two gear levers. Ms Horscroft had never driven it before and Higgins had to show her where the ignition was and where the headlight switch was. According to her evidence, which I accept, both men were drunk and both were rowdy. As they drove off from the hotel, they were giving her directions, especially about keeping left. Eventually, the accused turned the vehicle onto Diagonal Road and was driving in a general northerly direction.
At some stage, Higgins began touching her on the thigh. His hand was near to her crutch and she said to him, “Don’t fucking touch me”. He then said that, because she had the car in four-wheel drive, she would ruin it. She became concerned about that and began looking for the four-wheel drive control. As she did so, she was taking her eyes off the road. She was aware that she was approaching two cars parked next to the left kerb. She was driving in the left of the two available lanes for traffic travelling in a general northerly direction. As she approached those cars, she again took her eyes off the road to look at the four-wheel drive control. She heard what she described variously as a “bump” and a “crashing sound”. She realised that she had collided with something. She believed she had sideswiped one of the parked cars. She braked and stopped the vehicle. Almost immediately after stopping, she drove on; she did so because both Higgins and Johns shouted at her to do so. She felt intimidated by them and did as they said. They eventually arrived at Glenelg, and she parked the car. After they got out she looked at it, as did Higgins, and saw that a passenger side rear vision mirror was broken off. She walked into a bar of the Holdfast Shores Hotel, known as “Pier One”. She was still with Higgins and Johns. While she and Higgins were sitting at the bar, she tried to talk about the incident with him. Her evidence was that he kept saying to her that she was to “shut up”. David Meadows, who was serving behind the bar, confirmed her evidence that Higgins kept repeating, always in a firm voice, “shut up”.
Probably shortly after midnight, the three of them separated. I do not know where Higgins went. Ms Horscroft and Mr Johns walked across to the Watermark Hotel, intending to continue drinking there. But they were refused admission because one of the security officers outside the hotel had seen Mr Johns urinating in a public place near to the hotel. Accordingly, the accused and Mr Johns went, by taxi, to his house. There, they each had one can of beer. Mr Johns went to bed and Ms Horscroft “crashed” on the sofa. She went home the following day. While she was watching a television news service at about 6 p.m. on the Friday, she saw an item about the collision on Diagonal Road. It included a photograph of Mr Higgins’s car. She then realised, for the first time, that she had killed Mr Hyland.
Barry Higgins was not called to give evidence. He, too, has been charged with an offence or offences arising out of this incident.
Mr Johns professed not to know if there had been any conversation in the car on the way to Glenelg. The effect of his evidence was that he could not recall anything being said or done in the car. He gave evidence that he remembered an incident in which he felt a bump. It was his evidence that when he said “What was that?” there was no answer. He had also said that he heard no discussion about a taxi or the community bus while at or outside the Warradale Hotel. He said that he was standing too far away to hear the accused and Higgins when they were inspecting the damage to the vehicle upon arrival at Glenelg. As I have said, he was a most unsatisfactory witness. In my view, he has tried to distance himself as much as possible from all relevant events. I also accept Ms Horscroft’s evidence that Johns, too, was boisterous in the car. I accept that he, too, told her to drive on when she stopped, albeit momentarily, immediately after the collision.
As I have said, the Crown does not dispute that Ms Horscroft was unaware that she had struck a man standing on the road. I accept her evidence that it did not cross her mind that she had hit anybody. But the prosecution argues that her lack of knowledge is irrelevant. It is the prosecution’s submission that the defence in subsection 3 of Section 43 of the Road Traffic Act is not available to her because she was aware that her vehicle had been involved in a collision. That is, the Crown says that the defence of lack of awareness goes only to lack of awareness of the fact of a collision of some sort. It is irrelevant that she was unaware that she had hit a person. In my view, for reasons to which I shall come, the prosecution’s submission should be rejected. The defence is available to a person who is unaware, on reasonable grounds, that a person had been killed or injured in the relevant accident.
Did Ms Horscroft have reasonable grounds for being unaware of the accident?
In her evidence, Ms Horscroft claimed that she was scared of both of the men in the car. They were big men, they were intoxicated, both were shouting at her and one of them – Higgins – had been, effectively, sexually molesting her. The effect of her evidence was that she was so intimidated by them and their behaviour immediately after the collision that she drove on when they told her to do so. The Crown argues that I should not accept that evidence or, at least, that I should not accept that that evidence provides reasonable grounds for her lack of awareness. The factual issue is not easy. The Crown points to two matters which, in its submission, are telling.
During evidence, I saw video footage from security cameras at both the Warradale Hotel and the Pier One Bar at the Holdfast Shores Hotel. The footage is relevant for two reasons. First, it shows clearly how many drinks Ms Horscroft consumed. There is now no dispute about that. As I have said, during a period of nearly three hours, she drank six standard drinks each comprising 30mls of whisky topped up with Coca-Cola. Secondly, the video footage shows her apparently on friendly terms with Higgins throughout the events at the Watermark Hotel and upon arrival at the Pier One Bar. The prosecution argues that the apparently friendly terms on which they were, both before and after the collision, tells against her evidence that she was intimidated by Higgins in the car. The prosecution also alleges that her failure to stop was occasioned, not by her being intimidated, but by the fact that she must have known that she was affected by alcohol to some extent and by the fact that she was driving without a licence. The Crown argues that the true reason for her failure to stop was her fear that, if she did stop, she may have been in trouble with the police.
I have considered very carefully the prosecution’s submissions on those issue. Against them, I have considered Ms Horscroft’s evidence and her credibility as a witness. She told me that it did not occur to her that she should not stop for either of those two reasons. First, she insisted that she was fit to drive. It was her belief that she was not “over the limit”. Further, she said it did not cross her mind that she was driving without a licence. It was her evidence that she wanted to stop, see what damage had been caused and leave some note of her particulars. I accept her evidence. Ms Horscroft is not especially articulate but, throughout the whole of her evidence, she impressed me as being thoroughly genuine. She was, I think, surprised at the suggestion that she had had so much to drink that she should not drive. It seems to me, although I heard no expert evidence about it, that she must have been affected by alcohol to some extent. That is not to the point: it is her belief about her capability to drive and her belief that she was not “over the limit” that is important. Further, she had no reason to think that had she stopped and inspected Mr Hyland’s car the police would have become involved. I accept her explanations for her failure to stop. She was intimidated by two drunken men. The fact that she continued to be on fairly good terms with Higgins after the incident does not shake my faith in her evidence. She was very much at his mercy on the evening in question. She had no, or very little, money. She was driving his car and it was she who had damaged it. I do not think the fact that he had been behaving improperly in the car is inconsistent with her holding hands with him briefly as they walked towards the Pier One Hotel. She put a stop to his unusual behaviour in the car as best she could, and quickly. She said in evidence that, when Higgins has been drinking, he can be boisterous and flair up for a brief period but then settle down again.
I am satisfied, on the balance of probabilities, that Ms Horscroft had reasonable grounds for being unaware that she had struck Mr Hyland.Is that a defence?
Whether or not Ms Horscroft has a defence turns upon the proper construction of Section 43.
Section 43 is specific. It deals with one only of the types of accident or incident referred to in Section 5, the definition section; that is, the relevant obligations are imposed only upon drivers involved in an accident in which a person has been killed or injured. A driver’s obligations after other accidents or collisions are dealt with in Rule 287 of the Australia Road Rules. An offence against Section 43 carries a much higher penalty than a breach of Rule 287 and an offence against Section 19AB(1), which includes a breach of a driver’s obligations under Section 43, carries a very high penalty indeed.
In my view, there can be no doubt that Section 43 creates an offence of strict liability. Were it otherwise, and the prosecution had to prove the driver’s knowledge of death or injury, sub-section (3) would have no work to do. But the severity of the provision is ameliorated by the provision of a defence. The question is: is the relevant unawareness simply of the fact of any accident or is it of the fact of an accident that has actually caused death or injury? In my view, the latter.

That interpretation is consistent with the wording of the section. Were the relevant unawareness the unawareness only of the fact of an accident then one would have expected the draftsman to have used “an” rather than “the” in sub-section (3). That is to say, in s43(1) “an accident in which a person is killed or injured” is, for the purposes of s43 “the” accident. That interpretation is consistent with the very severe penalties imposed for an offence against the section. It is also consistent with the Second Reading Speeches in both Houses of Parliament. In his Second Reading Speech (Hansard, House of Assembly, Wednesday, 4 May 2005, at page 2507) the Honourable the Attorney-General introduced the amendments of which section 19AB is one, to the Criminal Law Consolidation Act with words which included:
“The Government finds it abhorrent that a person could kill or seriously injury another in an accident and then drive off without stopping to provide assistance and pay so little by way of penalty. The law must reflect the serious nature of such action and ensure penalties are sufficient. We must deter people who think about shirking their responsibilities.”
“Abhorrent” is a very strong word. It is used in conjunction with the phrase “shirking their responsibilities”. In my view, the word and the phrase are apt to describe a person who has driven on in the knowledge that he or she has killed or injured. They are not apt to describe a driver who drives on, knowing that there has been an accident, but unaware on reasonable grounds that the accident has resulted in death or injury. The Speech in the Legislative Council (Hansard, Legislative Council, 24 November 2005 at Page 3214) adds further support to that view. The Honourable Minister said “it will be a defence to establish that the defendant was unaware that the accident (being a collision causing death or injury) had occurred and the lack of awareness was reasonable.”
For those reasons I am of the view that a person, such as Ms Horscroft, who was unaware on reasonable grounds that the accident in which she had been involved had caused death or injury, is not guilty of an offence against section 19AB. Of course, what is “reasonable” will depend upon all of the circumstances.
In most cases, I would think that lack of awareness occasioned by a simple failure to enquire about the consequences of the accident, would not be reasonable. Here, Ms Horscroft was unaware that she had caused Mr Hyland’s death because she failed to enquire. As I have said however, that failure to enquire was based on reasonable grounds. Cases where a driver is unaware on reasonable grounds that he or she has caused death or injury in a collision, especially where the driver knows of the fact of the collision will be very rare. This is such a case.
Given the admissions made by the accused, and the way the case was run, I do not think it necessary to set out the standard directions which I would give myself in a trial by Judge alone.
I record a verdict of not guilty.