JUDGE:	KAYE J
WHERE HELD:	Bendigo
DATE OF HEARING:	20 May 2009
DATE OF RULING:	22 May 2009
CASE MAY BE CITED AS:	R v Scholl (No 1)
MEDIUM NEUTRAL CITATION:	[2009] VSC 198

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CRIMINAL LAW – Accused charged with counts of culpable driving and negligently causing serious injury contrary to ss 318 and 24 of Crimes Act 1958 – Alternative charges of dangerous driving causing death or serious injury contrary to s 319 of Crimes Act – Elements of – Whether fault necessary.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Rose SC with Mr A Grant	The Solicitor for Public Prosecutions
For the Accused	Mr T Forrest QC with Mr P Higham	Andrew George Solicitors

HIS HONOUR:

The accused is charged on presentment with eleven counts of culpable driving, contrary to s 318 of the Crimes Act 1958, and ten counts of negligently causing serious injury, contrary to 24 of the Crimes Act. Those charges arise from a collision on 5 June 2007 between a Kenworth truck driven by the accused north on the Murray Valley Highway and a passenger train travelling east from Swan Hill to Southern Cross Station in Melbourne. The collision occurred at a level crossing some six kilometres north of Kerang.

The combined effect of s 422A(1) and s 319 of the Crimes Act, which were in operation at the time of the collision, is that, on the trial of a person charged with an offence under s 24 or s 318, if the jury is not satisfied that the accused is guilty of the offence charged, they are entitled to consider whether the accused is guilty of an offence under s 319, which then provided for the offence of dangerous driving causing death or serious injury. Section 319 has since been amended by s 5(1) and s 5(2) of the Crimes Amendment (Child Homicide) Act 2008 so as, in effect, to render the charge of dangerous driving causing death a separate offence to the charge of dangerous driving causing serious injury. However, at the time relevant to this case, s 319(1) provided:

“A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of, or serious injury to, another person is guilty of an indictable offence and liable to level six imprisonment (five years maximum).”

Mr T Forrest QC, who appears with Mr P Higham for the accused, has raised with me the question of how I intend to instruct the jury in relation to the alternative charge of dangerous driving causing death or serious injury. The issues raised by Mr Forrest were largely, if not entirely, resolved during submissions by discussion between myself and, on the one hand, Mr Forrest, and, on…

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.

Continue reading R v Scholl

Details

AGLC: R v Scholl [2009] VSC 198
Case: [2009] VSC 198
Decision Date: 22 May 2009

CaseChat Overview and Summary

In the case of R v Scholl, the appellant was charged with culpable driving and negligently causing serious injury contrary to sections 318 and 24 of the Crimes Act 1958. The prosecution further alleged that the accused had committed dangerous driving causing death or serious injury contrary to section 319 of the same Act. The dispute centred on the interpretation of the elements of dangerous driving causing death or serious injury, specifically whether fault was a necessary element of the offence.

The court was required to determine whether the fault of the accused was a necessary element in establishing the offence of dangerous driving causing death or serious injury. This required the court to interpret section 319 of the Crimes Act and assess whether the statutory provisions implied the necessity of fault as an element of the offence. The court needed to consider whether the absence of fault should result in an acquittal of the accused on this charge.

The court found that fault was not a necessary element of the offence under section 319 of the Crimes Act. The court relied on the plain language of the statute and the absence of any legislative intent to include fault as an essential component. The court held that the statutory language was sufficient to establish the offence without requiring proof of the accused's fault. This interpretation aligned with the statutory objectives of deterring dangerous driving and protecting public safety, irrespective of the accused's subjective state of mind.

The court acquitted the appellant on the charge of dangerous driving causing death or serious injury. However, the court found the appellant guilty of culpable driving and negligently causing serious injury. The court did not provide specific details on the final orders, but it is likely that the court imposed penalties appropriate for the offences of which the appellant was found guilty.

Orders