R v Scott
[2003] VSCA 55
•15 May 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 222 of 2001
| THE QUEEN |
| v. |
| DANIEL NICKOLAS SCOTT |
---
JUDGES: | WINNEKE, P., PHILLIPS and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 March 2003 | |
DATE OF JUDGMENT: | 15 May 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 55 | |
---
Criminal law – Culpable driving – Admissibility of evidence of previous driving – Principles guiding the admissibility of such evidence – No error detected in decision by judge to admit such evidence
Judge’s directions – Modification of standard directions in cases of culpable driving based on gross negligence – Whether judge in error in the circumstances of the instant case in failing to give directions approximate to those given in cases of involuntary manslaughter – Application of the principles referred to in R. v. De’Zilwa [2002] VSCA 158 discussed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
For the Applicant | Mr. O.P. Holdenson, Q.C. | Kenyons |
WINNEKE, P.:
The applicant – who is now aged 23 – was convicted in the County Court on 15 August 2001 of one count of culpable driving causing death and one count of negligently causing serious injury. On 24 August 2001 he was sentenced to six years’ imprisonment on count 1 (culpable driving) and two years’ imprisonment on count 2 (negligently causing serious injury). The judge ordered cumulation of one year of the sentence on count 2 upon the sentence imposed on count 1. Hence, the total effective sentence was seven years’ imprisonment; and his Honour directed the applicant to serve a minimum term of five years before becoming eligible for parole.
The applicant has applied for leave to appeal against the convictions and the sentences imposed.
The events giving rise to the convictions occurred on Sunday 11 October 1998 when the applicant was 19 years of age. He was, at the relevant time, the holder of a probationary licence. At about 11 a.m. on the morning of that day, the applicant was driving his vehicle in a westerly direction along the Eltham/Yarra Glen Road. As he came out of a left hand bend his vehicle, a white utility with a V8 engine, drifted onto its wrong side of the road near its intersection with Gills Road, and came into a glancing collision with a vehicle travelling in the opposite direction driven by one, Illios Dikeos. Dikeos was shaken and pulled up; but the applicant did not stop. Nor, it seems, did he moderate his driving. A motor cyclist, one Price, had seen the applicant’s utility come around the bend, almost “sideways”, saw it “glance off” Dikeos’ car, throwing off a shower of dust and glass; then straighten up and keep going. Some 1 to 2 kilometres further on, the applicant’s vehicle approached a right hand curve in the road at Watson’s Creek where visibility of on-coming traffic was to some extent obscured by the crest of the road. Opposing the applicant – and coming from the other direction – were a number of motor cycles ridden by members of a “veteran” motor cyclists’ club who were engaged in a “group ride”. The applicant was later to proclaim that, as he crested the rise at the apex of the bend in the road, he was confronted by a “yellow motor cycle” which was “on its wrong side of the road”, forcing him to swerve to his left so that the near side wheels of his utility entered the gravel verge as a consequence of which he lost control of the vehicle which veered to its right across the bitumen surface of the roadway into the path of the oncoming motor cycle ridden by the deceased and upon the pillion of which was the grievously injured passenger. Following the collision the applicant’s vehicle continued on its path across the surface of the carriageway narrowly missing other motor cyclists and went down an embankment coming to rest against a tree on the northern side of the road almost opposite its intersection with Bill’s Track.
It was not disputed at the trial that the Eltham/Yarra Glen Road – in the area where the two incidents, which I have described in the preceding paragraph, occurred – is a narrow winding road which, according to a scale plan produced at trial, has a total width of bitumen of about 8 metres divided by a broken white line down the centre and bordered on each side by a gravel verge. At various points along the length of the carriageway – and in particular at or near the point where the first of the two incidents occurred – the broken white line becomes a double white line. At the time when these incidents occurred there was a governing speed limit of 100 kph. However, evidence given by police at the trial indicated that, in those parts of the road where the bends existed – and where there were signs demonstrating the existence of the approaching curves – a limit of 80 kph was more appropriate to the circumstances. Since this accident occurred the governing limit has been reduced to 80 kph. During the trial, the jury had a view of the scene.
On the evening of the day of the collisions, the applicant was interviewed by police. The record of that interview formed part of the evidence at the trial. Some of its contents were relied upon by the prosecution; some by the applicant. Relevantly, he told the police that, when the collisions occurred, he was on his way home from a friend’s place in Mt. Evelyn where he had been on Friday night and Saturday. He said that, because he had slept only for a total of 12 hours over the two nights he was “a little bit fatigued” when driving home on Sunday. When asked how the collision with the motor cycle occurred, he said:
“I came around the bend and there was a yellow – like the road type bikes with all the big plastic around – on my side of the road. I moved to the left to miss him and dropped the wheels in the dirt and the car slid out and pointed me straight across the other side of the road, and I hit the two bikes and then the tree.” [In fact he had only collided with one motor cycle.]
When asked where the bikes were on the road, he replied:
“I couldn’t see the start, I couldn’t see the finish of the bikes, there was – the road comes down and it twists and as the bike – he was goin’ – instead of goin’ following the road, he was just cutting through the middle. There was a bike next to him, and he was on the white line and he was there and he couldn’t move straight back over because he would’ve slammed into his mate that was next to him.”
Q. “Right. Prior to this, did anything else happen?”
A. “Up the road a little bit further was a – I think it was a white – I’ve forgotten the colour of the car, I told someone at the collision, I can’t remember now, and I was coming down a hill and I was – wasn’t paying much attention, I was pretty, you know, drowsy and I’d come down the hill and was going around the left hander and went onto the other side of the road and I only just missed the car. Well I thought I missed it, and a motor cyclist told me that I hit it, but I looked in my rear vision mirror and there’s no damage to my car or anything like that when I went past, there was a – like a – kind of like a crunch, but it was – I thought it was the back tyre rubbin’ on the gutter of the car, ‘cos it hit a pretty big bump when I went around the corner and I looked up in my mirror and he was – that’s – that’s it. I didn’t – he wasn’t slowin’ down or anything like that.”
Q.“Did you stop at all?”
A.“No, I just kept going.”
…
Q.“Sorry; he kept going?”
A.“Well, in the mirror, there was no damage, no debris or anything like that, so I didn’t think I’d hit anythin’.”
Q.“Did you make any effort to go back and locate the other driver?”
A.“No.”
…
Q.“Did anything happen to the car?”
A.“What do you mean?”
Q.“With this crunch or scraping.”
A.“No. Nothing. That’s why I didn’t think I’d hit him. Well … at the time.”
Q.“How far over the centre white line were you?”
A.“I didn’t know. It’s not very wide. I would’ve been just on the white line.”
The police questioning then reverted to the fatal collision. It was as follows:
Q.“Okay. Now, leading up to where the – you first see the motor cycles, what side of the road were they on?”
A. “What do you mean? Like … there was one bike who real – like, not in the middle, but he was on my side of the road. Those roads are very narrow, there’s not room for another bike on your side of the road.”
Q. “What happened to the first motor bike then?”
A. “I think there – there was heaps – I didn’t even see the start. It was – like there was a group – what I remember is a group of – like the – the … like the big plastic fronts and all that, a group of them at the front kind of, and then there was all the, like, older type bikes at the back.”
Q. “How fast were you travelling?”
A. “When I hit the – when I came around the corner and I had the collision I would have been doing roughly 70 kilometres per hour. Would’ve been, yeah 65, 70.”
Q. “When you’ve collided with the motor cycle, what side of the road were you on …?”
A.“His side. Yeah.”
It was not in contest at the trial that the applicant had been tested, on the day of the collisions, for alcohol concentration in the blood; and that those tests proved negative.
The count of “culpable driving causing death”, alleged against the applicant in count 1 of the presentment, asserted the manner of driving defined in sub-section (2)(b) of s.318 of the Crimes Act 1958. Section 318(1)of the Act makes it an offence for a person to cause death by the culpable driving of a motor vehicle. Sub-section (2)(b) provides:
“(2)For the purposes of sub-section (1) a person drives a motor vehicle culpably if he drives the motor vehicle –
(a) …; or
(b)negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; or
(c) …; or
(d) … .”
In the light of the fact that the offence carries the same maximum penalty (namely 20 years) as manslaughter, this Court has often said that the offence described by s.318(2)(b) is in substance a species of involuntary manslaughter[1]. This state of affairs has not always been so. When the offence of “culpable driving” was first introduced into the statute law of this State by the Crimes (Driving Offences) Act 1967, the maximum penalty which it attracted was less than half the maximum penalty prescribed for manslaughter[2]. Whether this has influenced the form of standard direction, given by judges to juries in this State, cannot be known; but that standard direction has been given since R. v. Horvath[3] was decided by the Full Court. It was the view of that court that the proper course for the trial judge to take when directing juries with respect to a charge pursuant to s.318(2)(b) was:
“to confine himself to the very terms of the relevant legislation, to draw attention to the requirement that the jury must be satisfied that there has been a failure on the part of the accused to observe the prescribed standard of care and that the failure must not only be unjustified, but must be to a gross degree. The legislature has in words prescribed the degree of departure from the standard of care required to constitute the offence, and to do more than emphasize that the departure from the stated standard of care must be gross is only likely to obscure the nature of the task before the jury.”
Their Honours went on to point out that, in a case where the offence is charged under s.318(2)(b), it was:
“… both unnecessary and undesirable … that a charge should be complicated by reference to the standard, in whatever terms it is properly expressed, required to establish manslaughter by criminal negligence.”
It will be necessary to return to the history of the section because it has a bearing on one of the grounds of appeal argued in this Court.
[1]R. v. Guariglia [2001] VSCA 27 at [3]; Director of Public Prosecutions v. Solomon [2002] VSCA 106 at [18]; R. v. De’Zilwa [2002] VSCA 158 at [43].
[2]cf. R. v. De’Zilwa, supra, at [42]-[43] per Charles, J.A.
[3][1972] V.R. 533.
The applicant, by notice, applied for leave to appeal against his conviction on six grounds. Upon the hearing of the appeal Mr. Holdenson – who appeared for the applicant – argued only two of those grounds, namely grounds 3 and 6. They are as follows:
“3.The learned judge erred in his directions to the jury as to the use to which the jury could put the evidence, if accepted by the jury, of ‘the first collision’.
6.The learned trial judge erred in his directions to the jury concerning the element of ‘negligence’ (or ‘negligently’) in each of the two counts specified on the Presentment.”
In respect of this latter ground, particulars were given which, in essence, alleged error by the judge in giving directions as to the departure from the standard of care required to satisfy the offence described by s.318(2)(b) (and the offence of “negligently causing serious injury”) in terms of the words of sub-section (2)(b). It was further particularized that it was necessary and appropriate to the circumstances of this case for the judge to direct the jury in terms appropriate to a charge of criminal manslaughter. In this respect, reliance was placed on the recent decision of this Court of R. v. De’Zilwa[4]. The decision in De’Zilwa was published some 14 months after the applicant was convicted.
[4]Supra, particularly at [2] per Ormiston, J.A., Charles, J.A. at [46] and O’Bryan, A.J.A. at [55].
Directions as to “First Collision”
In the course of what seem to me to have been full and careful directions to the jury, the learned judge gave the following directions as to the use to which the jury might make of the evidence given of the applicant’s driving at the time when the collision with Dikeos’ car occurred. His Honour told the jury:
“During this trial, there has been evidence concerning two collisions, the first collision being the utility driven by the accused and the blue Ford sedan being driven by Mr. Dikeos. Now, I must stress that the accused does not stand here being charged with any offences in respect of the first collision. … He stands here charged with two counts arising out of the happening of the second collision – that is the fatal collision.
You are the judges of the facts and as so (sic), given the close proximity in time, in space and circumstances between the happening of the first accident and the happening of the second accident, may use the circumstances of the happening of the first accident for the limited purpose of providing you with evidence as to the general manner of the driving of the accused on the day and time in question, and on the road in question, and indeed you may think that the first accident happened moments, or minutes, before the happening of the second accident.
Again, whether you adopt such evidence as to the happening of the first accident as providing you with evidence as to the accused’s general manner of driving on the road on that day and on (sic) that time, is entirely a matter for you. I just stress that he stands charged here with two counts, or charges, arising out of the happening of the second collision and because of that, naturally as a matter of common sense, it seems to me – I stress again it is entirely a matter for you – that you should focus your main attention on the events leading up to immediately prior to the happening of the second accident.”
No exceptions were taken as to this aspect of his Honour’s charge by trial counsel for the applicant.
Mr. Holdenson, who appeared on behalf of the applicant, did not suggest that the evidence of the manner of the applicant’s driving when his car came into collision with that of Dikeos was irrelevant and inadmissible. Such an application had been made at the outset of the trial by the applicant’s trial counsel and rejected; correctly in my view. The two collisions were so closely connected in time and distance as to make the lack of control and attention inherent in the first collision (if the jury so found it) logically probative of the Crown’s contention that the fatal collision was caused by driving of a similar character which in law amounted to “gross negligence”. There is no magic about this type of evidence. Whether the lack of care and attention in driving at one point can be logically probative of lack of care and attention at another point must ultimately depend upon whether the two points are so closely related in time, distance and circumstance to allow the tribunal of fact to draw an inference that the manner of driving at the second point was of the same character as the manner of driving at the first point. Thus in R. v. Martin[5] the trial judge had allowed evidence of a course of driving by the accused over a distance of some 19 kilometres up to a point some 10 kilometres from the point of the fatal collision to go into evidence in proof of the manner of driving at the point of collision. On appeal to the Queensland Court of Criminal Appeal it was contended that the evidence of driving was too remote in time and distance to give it probative value or, alternatively, to enable its probative value to outweigh its prejudicial effect. D.M. Campbell, J., in whose judgment W.B. Campbell, J. agreed, said:
“I am inclined to the view that the manner of driving over the whole of the distance (that is, the 19 kilometres) was relevant to the question whether [the accused] drove dangerously at the relevant place ….”
That was a case, like this one, where the accused had elected to give no evidence. R. v. Lewis[6] was another case where evidence of the manner of driving (speed) at a point some distance from the collision was held to be admissible because the evidence given of the manner of driving at the earlier point “[bore] directly on the probabilities as to the rate of speed at the time of the accident”[7]. R. v.Buchanan[8] was a similar case; whereas in R. v. Horvath[9] the Full Court of this State regarded as inadmissible evidence of the accused’s driving some 30 miles and 45 minutes from the point of accident, because, in the view of the Court[10]:
“Where acts of driving are substantially separated in time and place, evidence of one is not … evidence of negligence of the other, in the absence of some connecting link … .”
[5](1981) 4 A.Crim.R. 302.
[6][1913] V.L.R. 227.
[7]Per A’Beckett, J., delivering the judgment of the Full Court of Victoria.
[8][1966] V.R. 9.
[9][1972] V.R. 533.
[10]At p.538.
As I have said, Mr. Holdenson’s submission to this Court was not that the evidence of the first collision was inadmissible; rather his submission was that the directions which the learned judge gave to the jury as to the use which they could make of it were insufficiently explicit in the circumstances of the case. Those circumstances, he contended, included the applicant’s protestations, made to persons at the scene and later in his police interview that, as he rounded the bend and crested the hill immediately prior to the point of collision, he was confronted by a “yellow motor bike” on his side of the road which compelled him to move to his left, thus forcing him into the gravel verge and to lose control of his vehicle precipitating him into collision with the following motor cycle. Indeed, it appeared from his record of police interview that he was saying that there were two motor cycles abreast of one another because, as he said, the one on his side of the road could not “move back over because he would’ve slammed into his mate that was next to him”. Mr. Holdenson contended that this was the real issue of fact in the trial, in respect of which he submitted there was some evidence to support the applicant’s version. He took us through the evidence in some detail, most of which was given by members of the motor cycle club who were travelling in the opposing direction to the applicant, but some of which was given by occupants of a motor vehicle which was travelling in the same direction as the cyclists. There was also evidence from Sergeant Bellion of the Victoria Police Investigation Unit who attended and examined the scene, particularly the scuff marks in the gravel and the skid marks on the bitumen left by the applicant’s utility. He measured 18.4 metres of marks on the northern gravel verge and 23.4 metres of skid marks across the bitumen. He expressed the view that the brakes of the utility had been applied when its wheels were in the gravel and had then skidded across the road into collision with the motor cycle ridden by the deceased which had been travelling just to the left of the centre of the road. He estimated the speed of the applicant’s vehicle at about 100 to 105 k.p.h. when it started to skid in the gravel; and the deceased’s motor cycle at about 44 to 65 k.p.h. when it commenced to move to its left. One of the motor cycle riders was a Jacinta Thomas. Her vehicle appears to have been the only one which had some “yellow” in it; it was mainly red but with yellow flashes on the side. She said that she had overtaken some other bikes before the collision, but without incident. As she went into a left hand curve she saw a white utility coming around the bend. She said it was travelling fast and its left hand wheels went into the gravel. She looked in her rear-view mirror and saw it going across the road. She claimed that she was not overtaking at the time, and that she was on her correct side of the road. She agreed that she had overtaken the other bikes shortly before the collision. It was put to her that she was “so far to the right” that, if she had not moved, she would have collided with the utility. She denied that this was so. A Mr. Thirkell said that he was behind Miss Thomas when he saw the utility come around the right hand bend “very very high in the centre of the road”. He said it moved to its left to the point where its near side wheels “dropped into the gravel”, “fishtailed” and came across the road straight towards him. It missed him by about 6 feet and crashed into the cycle behind him. In cross-examination he said that he thought that Miss Thomas, although on her correct side of the road, had “left it a bit late in turning to her left”.
Upon this evidence, Mr. Holdenson submitted that there had been “a break in the nexus” between the events of the “first collision” and the fatal impact. He submitted that it was open to the jury to find that the movements of an oncoming cyclist (trial counsel had contended that it was Miss Thomas) had caused the applicant to move to his left, precipitating his loss of control. In those circumstances, Mr. Holdenson submitted that it was not sufficient for the judge to merely direct the jury that they could use the evidence of the “first collision” for the “limited purpose of providing you with evidence of the manner of the driving of the accused on the day and time in question”. He submitted that the judge should have told the jury that they could only use the evidence of the first accident for that purpose, if they were satisfied that the Crown had excluded the possibility that the accused was forced to take evasive action to avoid a danger posed by the conduct of the oncoming cyclists, particularly Miss Thomas. He submitted that, unless the jury could be so satisfied, then whatever lack of care on the part of the accused the jury might find had contributed to the first collision could not have a legitimate bearing on the issue of whether his gross negligence had caused the second collision.
I cannot accept these submissions. There was no evidence, aside from the applicant’s statement to police, upon which the jury could properly find that the oncoming cycles, including that of Miss Thomas, were on their wrong side of the road or doing anything which legitimately caused the applicant to take evasive action, if that is what he did. In other words, there was nothing in the evidence which suggested that any other road user posed any danger to the applicant if he had been exercising the required degree of skill and care which the circumstances, including the nature of the roadway, obliged him to exercise. In those circumstances, it seems to me that his Honour was correct to have directed the jury in the manner which he did, and to have told them that they could only use the evidence of the driving leading up to, during and after the first collision - which, on any view, demonstrated a lack of care and attention - as evidence of the general manner of his driving. As I have said, no exception was taken to this aspect of his Honour’s directions. Indeed none could have been properly taken by trial counsel because, after the conclusion of evidence, his Honour discussed with counsel the nature of the directions which should be given about that evidence. He said:
“Gentlemen there may be a number of issues that have occurred to me, and I’m sure it’s occurred to both of you, is to what use the jury can make here of the evidence of the first collision in relation to the second collision. It seems to me that I’ve got to tell the jury that it’s entirely a matter for them, but that they could use that to indicate his manner of driving over that stretch of road, but really what they should be focussing their attention on is this happening of the second collision.”
Trial counsel for the applicant replied:
“I agree with that your Honour. In fact, if he had been charged with … culpable driving by recklessness … they may well be able to infer flight, but … he has not been; … and really the only use they could make of it is the manner of driving.”
Whilst the failure to take exception to the judge’s charge is not necessarily fatal to an application for a new trial where it can be seen that a significant miscarriage of justice has occurred as a result of misdirection or non-direction, it is nevertheless a cogent indication that counsel absorbed in the atmosphere of the trial – particularly where counsel was, as here, well versed in criminal trials – has seen no injustice or error in what has been done[11]. A fortiori where the defence counsel has agreed that the direction in fact given should be given. In any event, and quite apart from the matters to which I adverted, I am not persuaded that any miscarriage of justice has occurred to the applicant as a consequence of the impugned direction because the jury were told, more than once, that the real issues in the case upon which they should focus were the ones involving the applicant’s driving leading up to the second collision, in the context of which, on more than one occasion, the judge told the jury what the defence of the applicant was. These directions, in my opinion, were favourable to the applicant.
[11]R. v. Calides (1983) 34 S.A.S.R. 355 at 359 per Wells, J.; R. v. Tripodina & Anor. (1988) 35 A.Crim.R. 183 at 191 per Yeldam, J.; R. v. Gallagher [1998] 2 V.R. 671 per Brooking, J.A. at 681; R. v. Wright [1993] 3 V.R. 355 at 360-1 per Callaway, J.A.
Ground 6 – Misdirection in Directions as to the Element of Negligence in Respect of Both Counts
This ground was added, by leave of the Registrar, on 10 October 2002. The date is significant because it was one week after the publication of this Court’s decision in R. v. De’Zilwa[12]. In that case the Court (Ormiston, Charles, JJ.A. and O’Bryan, A.J.A.) was confronted with a submission on behalf of the applicant that the time had come for the Court to re-define the standard directions given by trial judges in cases of “culpable driving by negligence”[13] and of “causing serious injury by negligence”[14], where a count alleging an offence under s.24 was joined in a presentment with a charge under s.318(2)(b) of the Crimes Act. The charge to be given by trial judges on the count of culpable driving by negligence had been formulated by the Full Court in R.v. Horvath[15], in which (as I have noted in paragraph [8]) the Court said that, in future, the proper course for the trial judge to take was:
“to confine himself to the very terms of the relevant legislation, [and] to draw attention to the requirement that the jury must be satisfied that there has been a failure on the part of the accused to observe the required standard of care and that the failure must not only be unjustified but must be to a gross degree.”
[12][2002] VSCA 158.
[13]S.318(2)(b) of the Crimes Act 1958.
[14]S.24 of the Crimes Act.
[15][1972] V.R. 533 at 539 per Winneke, C.J., Little and Stephen, JJ.
In view of the fact that, in the 30 years since the decision in Horvath, the Parliament had, by increases in the maximum penalty, assimilated the offence prescribed by s.318(2)(b) of the Crimes Act to the offence of “motor manslaughter”, and because of the frequency with which juries are now asking trial judges to define for them the meaning of the word “gross”, counsel for the applicant in R. v. De’Zilwa submitted to the Court that the time had come to give more assistance to juries as to their task in cases of this kind. Having given consideration to the submission, and after consulting with the President, the Court concluded that the “Horvath directions” should, in the future, be revised. At [46] Charles, J.A., with whom O’Bryan, A.J.A. agreed, said:
“In my opinion where in future a person is charged with culpable driving under s.318(2)(b), the judge should direct the jury that the jury are required to find that the driving of the accused involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, and which involved such a high risk that death or serious injury would follow, that the driving causing death merited criminal punishment … .” (emphasis added)
In a separate judgment in the course of which he substantially concurred with the reasons of Charles, J.A., Ormiston, J.A. said[16]:
“In particular I agree explicitly with what he proposes as to the manner in which juries should hereafter be charged on counts of causing death by culpable driving when that count is based on driving ‘negligently’ pursuant to para (b) of s.318(2) of the Crimes Act 1958. What there appears ought to be stated by way of explanation of the words appearing in that paragraph which in the ordinary course will have been read to the jury. …[I]t is only that we now think that it is preferable and conducive to a better understanding of the meaning of paragraph (b) for judges in the future to be not merely free, but ordinarily under an obligation, to give the proposed direction.” (again, my emphasis)
[16]Supra at [2].
It is therefore clear that what this Court was intending to achieve was a modification of the standard directions in cases where culpable driving “negligently” is alleged against an accused after 3 October 2002. It was doing so because the experience gained in the 30 years which have elapsed since Horvath was decided has indicated that a direction, which is more in keeping with that given in a charge of manslaughter by criminal negligence, is now warranted. It will necessarily follow that, hereafter, when a charge under s.24 of the Crimes Act is joined on the same presentment with a charge under s.318(2)(b) of the Act, the same directions will be given in respect of both counts[17]. However, the Court did not intend to suggest that those trials which had preceded the publication of the judgments in De’Zilwa had miscarried only because the judge had, as would be expected, given directions which were then required to be given in what I have called “the standard form”. This was such a case.
[17]Cf. R. v. Shields [1981] V.R. 717 at 723-4.
Mr. Holdenson did not contend that this Court was disentitled from confining in a prospective manner guidance to trial judges by way of modification to standard directions[18]. Rather his contention was that this was a case where the circumstances warranted a direction which explained and elaborated, in the manner suggested in De’Zilwa, what was meant by the definition of “negligence” in s.318(2)(b) of the Crimes Act; namely a “failure unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in the circumstances of the case”. He submitted that, on any view, this was a short course of driving by a young man, unaffected by drink or drugs, on a road which was difficult to negotiate. Notwithstanding that the judge had told the jury on several occasions, in the terms prescribed by the statute, what was the degree of departure from the prescribed standard of care about which they had to be satisfied beyond reasonable doubt before they could convict, and had compared for them that degree of departure with that required in the civil law of negligence, the jury had still returned to court on the following morning, to ask the judge to instruct them again “in relation to the elements of both charges”. This signified, so it was submitted, that the jury was having some difficulty in understanding what was comprehended by the words “unjustifiably and to a gross degree” and ought to have led the judge, in explaining the concept, to go beyond the words of the statute and instruct the jury in terms commonly used in cases of involuntary manslaughter. In other words, as I understood the submission, Mr. Holdenson’s point was that this was the sort of situation, identified by the Court in the later case of De’Zilwa, where the jury needed assistance or explanation beyond a repetition of the standard directions in the terms prescribed by s.318(2)(b) of the Crimes Act. Having regard to the undisputed circumstances that the applicant had lost control of his vehicle because his wheels had entered the gravel on the applicant’s correct side of the road, this was a case, so it was submitted, where it became an imperative for the judge to instruct the jury in terms which would lead them to properly understand the nature and degree, or level, of the applicant’s negligence which had to be proven beyond reasonable doubt before they could convict.
[18]Cf. McKinney v. The Queen (1991) 171 C.L.R. 468 at 473-4 per Mason, C.J., Deane, Gaudron and McHugh, JJ.
I cannot accept these submissions. There is, in my opinion, nothing in the circumstances of this case, upon which Mr. Holdenson relies, or in the nature of the jury’s request for further instructions, which suggests to me that the jury failed to understand what they were required to be satisfied of before they could convict the applicant of these offences. We do not know why the jury wanted to be reminded of “the elements of the offences”. At the same time as the jury made that request, the jury wished to be reminded of the evidence of Miss Thomas and Mr. Thirkell, the cyclists who were closest to the point where the applicant’s car went out of control, and who were able to describe the relevant movements of that car in some detail. Arrangements were made to provide to the jury the transcript of the evidence of those witnesses. Nothing was further said by the jury to suggest that they were in doubt about the instructions which had been given to them, those instructions being, as it seems to me, in impeccable terms.
Finally, Mr. Holdenson submitted that, although, individually, neither ground 3 nor ground 6 may be held to be sufficient to found the requisite miscarriage, each of them considered together or in combination should lead the Court to conclude that the applicant has not been tried fairly or in accordance with law[19]. It is sufficient for me to say in respect of this ground that, for the reasons which I have given, I am not persuaded that the applicant’s trial was unfair. Accordingly I would refuse the application for leave to appeal against conviction.
[19]R. v. Ireland (1970) 126 C.L.R. 321 at 331; R. v. Kotzmann [1999] 2 V.R. 123 at 157.
Sentence
The notice of application for leave to appeal against sentence stipulates 17 grounds most of which seem to me to be particulars of the final ground that the total effective sentence is manifestly excessive. It will be recalled that his Honour imposed a sentence of six years’ imprisonment on the count of culpable driving, and two years’ imprisonment on the count of negligently causing serious injury. He directed that one year of the latter sentence be served cumulatively upon the sentence of six years, thus making a total effective sentence of seven years’ imprisonment; and directed that the applicant serve a minimum period of five years before becoming eligible for parole. In addition he ordered the cancellation of the applicant’s licence and directed that he be disqualified from obtaining a further licence for a period of five years. In the course of his sentencing remarks, his Honour said that he was satisfied that the applicant must have been aware of the happening of the first collision, but that he had “irresponsibly determined not to stop in flagrant disregard of [his] obligation as the driver of a motor vehicle which had then been involved in a collision with another motor vehicle”. His Honour was also satisfied that “immediately prior to and at the point of impact, no motor cycle was on its incorrect side of the road, nor was any motor cycle travelling at an excessive speed”. His Honour also referred to the extensive injuries and residual disabilities suffered by the deceased’s pillion passenger – the victim of count 2 on the presentment. The judge regarded the applicant’s driving as “grossly negligent” and that it demonstrated “a total disregard for the safety of other users of the road”. He was satisfied that the applicant’s drowsiness and fatigue, coupled with inexperience, inattention and excessive speed on a narrow winding road combined to cause the accident, for which no other road user was responsible. The judge accepted that the applicant was, apart from his predilection for driving powerful cars in a reckless fashion, a normal, decent young man of otherwise good character. He also regarded the applicant as “remorseful”, although much of the remorse was generated by self-interest. The applicant’s “driving history”, for a probationary driver, was – in his Honour’s words – “concerning”; the applicant having received, between October 1997 (a year before the accident) and June 2001 a total of eight “penalty notices” for various traffic infringements, mainly for driving at excessive speeds[20].
[20]The applicant’s driving history, pre and post offence, were put before his Honour on the plea by his own counsel. Two offences which followed this offence, were for driving at excessive speeds. They were matters which bore upon both “remorse” and “rehabilitation”.
Pursuant to grounds 1, 2 and 4, Mr. Holdenson submitted that his Honour had failed to accord sufficient weight to the applicant’s prospects of rehabilitation and to his previous character, and too much weight to the principle of general deterrence. Although the judge had made reference to the applicant’s youth and rehabilitation prospects, it was submitted that the magnitude of the sentence, and in particular the non-parole period, demonstrated that he must have made insufficient allowance for these matters. Further, in support of ground 6, counsel urged that insufficient weight had been given to the delay of three years between the date of the offence and the date of trial[21]. Again it was submitted that the magnitude of the sentence demonstrated that insufficient weight had been given to the applicant’s good work record, his lack of prior convictions, his good family background and his remorse. In the circumstances, it was put that the sentence was manifestly excessive and out of proportion to the misconduct.
[21]The judge said that he had been “concerned” that the matter had taken some three years to come to trial. It was explained that the charges had not been laid until nearly 12 months following trial, and that the committal proceeding had not taken place until nearly another 12 months had elapsed. Having regard to the fact that the applicant had chosen to plead not guilty and to the large number of witnesses who had to be located and interviewed by the police, the lapse of time does not seem to me to have been much beyond what is usual.
It cannot be said that the learned judge, in his careful sentencing remarks, had overlooked the matters to which counsel has referred. In essence, the submission is that the sentence imposed, both as to its maximum and non-parole periods, demonstrates on its face that the judge must have attributed too much or too little weight to the factors relied upon. The difficulty which I have with the submission is that these offences are notoriously committed by young men and women of similar age to the applicant and, like him, are of general good character with good prospects. No one likes sending such people to gaol; and it is not difficult to appreciate the predicament in which the applicant now finds himself. But so much has been spoken and written about the consequences which will befall young persons who choose to drive their motor vehicles on public highways in the manner in which the applicant did, that he can scarcely complain that he has not been warned. The community’s attitude to grossly negligent driving behaviour has been made known over many years through the increases in maximum penalties prescribed by the Parliament; and the courts – including this one – have been proclaiming for just as many years that those who put lives at risk through grossly negligent driving can expect to receive heavy penalties influenced by the sentencing principle of general deterrence. As I have previously noted, the maximum penalty for culpable driving is 20 years, the equivalent of manslaughter. Those who commit the offence must expect substantial punishment involving immediate incarceration. Mr. Holdenson submits that the penalty of six years for the culpable driving charged in count 1 was too much. He contends that this was not a case where the driving was influenced by drugs or alcohol, as so frequently occurs. That much may be acknowledged; but whether the grossly negligent driving is the product of fatigue and lack of judgment induced by alcohol, or fatigue and lack of judgment produced by lack of sleep does not appear to me to be a matter of much distinction. The applicant’s driving was, as the judge said, quite appalling. I do not regard the sentence of six years as manifestly excessive.
Nor, in my view, is the penalty of two years which his Honour imposed for negligently causing serious injury manifestly excessive. The maximum penalty of five years has been the subject of criticism for some years, insofar as it applies to
injuries inflicted by criminally negligent driving[22]. Mr. Holdenson did not submit that, in itself, the penalty imposed on count 2 was manifestly excessive. The thrust of his contention was that the cumulation of one year of this sentence imposed upon the six years for culpable driving produced a total effective head sentence which was excessive. I cannot agree. It was incumbent upon the judge, in my view, to cumulate a portion of the sentence on count 2. Otherwise the victim, who – as the judge noted – is maimed physically and psychologically for life – becomes a “meaningless statistic”[23]. Whilst the cumulation produced a total effective head sentence of seven years, it cannot be sensibly contended, in my opinion, that such a sentence is out of proportion to the circumstances as his Honour described them. It is true that the applicant is a young man, aged 19 at the time of the collisions, and 22 at the date of trial. An offender’s youth and prospects of rehabilitation will frequently motivate courts to leniency in sentencing. But, in offences of this nature, which are characterized by youth, courts have frequently pointed out that competing sentencing principles will ordinarily carry more weight[24].
[22]cf. R. v. Taylor [1999] VSCA 206 at [3] per Brooking, J.A.
[23]cf. Director of Public Prosecutions v. Solomon [2002] VSCA 106 at [19].
[24]cf. R. v. Sherpa (2001) 34 M.V.R. 345; R. v. Toombs (2001) 34 M.V.R. 509; R. v. Tran [2002] 4 V.R. 457 at 461-2
I am, accordingly, unable to accept the submission that the total effective sentence imposed by the judge is excessive. Nor, in my view, is the non-parole period which his Honour fixed. I would refuse the application for leave to appeal against sentence.
PHILLIPS, J.A.:
I agree in the judgment of the President.
BUCHANAN, J.A.:
I agree with Winneke, P. that the application for leave to appeal against conviction and sentence should be dismissed for the reasons stated by his Honour.
11
0
0