R v Paul Clifford Murray - [2008] ACTSC 115

R v PAUL CLIFFORD MURRAY [2008] ACTSC 115 (5 November 2008)

CRIMINAL LAW – procedure – application to sever two counts in indictment.
CRIMINAL LAW – procedure – duplicity – indictment alleges two alternative counts relating to driving resulting in death – whether indictment bad for duplicity –meaning of “duplicitous” – neither count in indictment duplicitous.
CRIMINAL LAW – offences – culpable/negligent driving – whether criminal liability always requires greater negligence than civil negligence – whether there can be more than one standard of negligence for criminal liability – whether same standard of negligence required for alternative offences charged – Crimes Act 1900 (ACT) – Road Transport (Safety and Traffic Management) Act 1999 (ACT).
CRIMINAL LAW – culpable driving causing death – negligent driving, penalty determined by whether death occasioned – elements of offences – jury directions about how to distinguish between the two charges.
CRIMINAL LAW – culpable driving causing death – negligent driving, penalty determined by whether death occasioned – scope for legislative clarification of distinctions intended.

Crimes Act 1900 (ACT), s 29

Crimes Act 1900 (NSW), ss 52A, 54

Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 6

Road Transport (Safety and Traffic Management) Act 1999 (NSW), subs 42(1)

Motor Traffic Act 1936 (ACT), s 129
Motor Traffic Act 1909 (NSW), s 4
R v Banks [2003] ACTSC 68 (27 August 2003)
S v The Queen (1989) 168 CLR 266
Pearce v R (1998) 194 CLR 610

Walsh v Tattersall (1996) 188 CLR 77

Andrews v DPP [1937] AC 576

Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433

Clout v Hutchinson [1950] 67 WN 203

The Queen v Leskinen (1978) 36 FLR 414

R v Buttsworth [1983] 1 NSWLR 658

R v D [1984] 3 NSWLR 29

R v Evans (unreported, ACTSC, Higgins CJ, 21 June 2005)

DPP (NSW) v Kim Soon Yeo [2008] NSWSC 953, (unreported, Johnson J, 17 September 2008)

No. SCC 298 of 2006

Judge: Penfold J
Supreme Court of the ACT

Date: 5 November 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCC 298 of 2006
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
v
PAUL CLIFFORD MURRAY

ORDER

Judge:  Penfold J
Date:  5 November 2008
Place:  Canberra

THE COURT FINDS:

(a) that neither the charge in Count 1 nor the charge in Count 2 is duplicitous;

(b) that no reason has been shown why charges under subs 29(2) of the Crimes Act 1900 (ACT) and s 6 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) should not stand together on the statute book and be interpreted as creating two separate offences requiring, among other things, different levels of negligence;

(c) that under s 29 of the ACT Crimes Act, a verdict taken under subs 29(2) of that Act does not preclude a verdict then being taken, if required, on an alternative charge under s 6 of the ACT Road Transport Act; and

(d) that no basis has been shown for ordering the indictment to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] ACTSC 115
Decision Date: 5 November 2008

CaseChat Overview and Summary

The defendant, Paul Clifford Murray, was facing charges related to driving resulting in death, with two counts included in the indictment. The primary issue before the court was whether the indictment was bad for duplicity, meaning whether it alleged two alternative counts that were overly vague or confusing. The court also had to determine if the standard of negligence required for criminal liability under the charges was different from that required for civil negligence, and if there could be multiple standards of negligence for criminal liability.

The court examined the meaning of "duplicitous" and concluded that neither count in the indictment was duplicitous. It found that the charges under the Crimes Act 1900 (ACT) and the Road Transport (Safety and Traffic Management) Act 1999 (ACT) could coexist on the statute book as separate offences requiring different levels of negligence. The court also noted that a verdict under one statute did not preclude a verdict under the other, and there was no basis for ordering the indictment to be severed. Therefore, the court ruled that the application to sever the two counts in the indictment was refused.

The court's decision clarifies the distinction between the two offences of culpable driving causing death and negligent driving, and the varying levels of negligence required for each. It also highlights the need for legislative clarification to distinguish between the two charges more clearly. The court's refusal to sever the counts in the indictment ensures that the defendant will be tried on both charges, allowing the jury to consider the different levels of negligence required for each offence.

Orders

Orders of the court

THE COURT FINDS:

(a) that neither the charge in Count 1 nor the charge in Count 2 is duplicitous;

(b) that no reason has been shown why charges under subs 29(2) of the Crimes Act 1900 (ACT) and s 6 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) should not stand together on the statute book and be interpreted as creating two separate offences requiring, among other things, different levels of negligence;

(c) that under s 29 of the ACT Crimes Act, a verdict taken under subs 29(2) of that Act does not preclude a verdict then being taken, if required, on an alternative charge under s 6 of the ACT Road Transport Act; and

(d) that no basis has been shown for ordering the indictment to be severed.

THE COURT ORDERS that the application to sever the two counts in the indictment is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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