R v Spong
[2018] ACTSC 129
•13 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Spong |
Citation: | [2018] ACTSC 129 |
Hearing Date: | 10 April 2018 to 13 April 2018 |
DecisionDate: | 13 April 2018 |
Reasons Date: | 16 May 2018 |
Before: | Loukas-Karlsson J |
Decision: | A direction was given to the jury in accordance with Bouch v The Queen [2017] VSCA 861. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Juries – Summing-Up – directions to jury – judicial comity – decision of another Australian intermediate appellate court on a statutory provision substantially identical with the one under consideration CRIMINAL LAW - PARTICULAR OFFENCES – Driving Offences – culpable driving causing death – gross negligence |
Legislation Cited: | Crimes Act 1900 (ACT) s 29, s 49 |
Cases Cited: | Baini v The Queen [2012] HCA 59; 246 CLR 469 Bouch v The Queen [2017] VSCA 861 R v Wolter (No 2) [2015] ACTSC 277; 302 FLR 1 |
Parties: | The Queen (Prosecution) Alister Peter Spong (Accused) |
Representation: | Counsel Ms M Jones with Mr S McLaughlin (Prosecution) Mr S Whybrow (Accused) |
| Solicitors ACT Director of Public Prosecutions (Prosecution) Sharman Robertson Solicitors (Accused) | |
File Number: | SCC 179 of 2017 |
LOUKAS-KARLSSON J
Introduction
On 5 January 2017, the accused, Alister Spong, was driving a utility vehicle with five people on the vehicle’s flat back tray at the Summernats festival in the ACT. One of the passengers, Luke Newsome, fell from the flat back tray and died the following day as a result of head injuries sustained in the fall. The accused was charged with culpable driving causing death by driving negligently contrary to s 29(2) of the Crimes Act 1900 (ACT) (ACT Crimes Act).
In the course of the trial, I invited the parties to make submissions regarding jury directions. In particular, I sought the parties’ submissions regarding the direction to the jury as to gross negligence.
On 13 April 2018 I directed the jury in accordance with Bouch v The Queen [2017] VSCA 861 (Bouch). I now give my reasons.
Offence
The accused was charged with an offence contrary to s 29(2) of the ACT Crimes Act. I set out the section in full:
29 Culpable driving of motor vehicle
(1) In this section:
drug—see the Road Transport (Alcohol and Drugs) Act 1977, dictionary.
(2) A person who, by the culpable driving of a motor vehicle, causes the death of another person is guilty of an offence punishable, on conviction, by imprisonment for 14 years.
(3) However, for an aggravated offence against subsection (2), the maximum penalty is imprisonment for 16 years.
Note Section 48A (Aggravated offences—offences against pregnant women) makes provision in relation to aggravated offences against this section.
(4) A person who, by the culpable driving of a motor vehicle, causes grievous bodily harm to another person is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
(5) However, for an aggravated offence against subsection (4), the maximum penalty is imprisonment for 12 years.
(6) For this section, a person shall be taken to drive a motor vehicle culpably if the person drives the vehicle—
(a) negligently; or
(b) while under the influence of alcohol, or a drug, to such an extent as to be incapable of having proper control of the vehicle.
(7) For this section, a person shall be taken to drive a motor vehicle negligently if the person fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case.
(8) An information or indictment for an offence against subsection (2) or (4) shall specify the nature of the culpability, within the meaning of subsection (6), that is alleged.
(9) Nothing in subsection (8) renders inadmissible in proceedings for an offence against subsection (2) or (4) evidence that, apart from that subsection, would be admissible in the proceedings.
(10) Nothing in this section affects—
(a) the liability of a person to be convicted of murder or manslaughter or any other offence; or
(b) the punishment that may be imposed for such an offence.
(11) A person who has been convicted or acquitted of an offence against subsection (2) or (4) is not liable to be convicted of any other offence against this Act on the same facts or on substantially the same facts.
(12) Subject to section 49, a person is not liable to be convicted of an offence against subsection (2) or (4) if the person has been convicted or acquitted of any other offence on the same facts or on substantially the same facts.
The accused made formal admissions at the outset of the trial that he was driving the vehicle and that the driving caused the death of Mr Newsome, in satisfaction of two of the elements of the offence. It was accepted by both counsel that what remained for the jury to determine was whether the accused’s driving was culpable in accordance with the definition in s 29(7) of the ACT Crimes Act.
The offence created by s 29 of the ACT Crimes Act is subject to a statutory alternative offence which a jury may also be directed to consider. That requirement is created by s 49 of the ACT Crimes Act, which provides as follows:
49 Alternative verdicts for certain other offences against the person
If, on a trial for an offence against a provision specified in column 2 in an item in table 49, the jury is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of an offence against a provision specified in column 3 in that item, it may find the accused not guilty of the offence charged but guilty of the offence against the provision specified in column 3:
The relevant column 2 provision in this case is s 29(2), and the relevant column 3 alternative offence is created by s 6(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). That provision is as follows:
6 Negligent driving
(1) A person must not drive a motor vehicle negligently on a road or road related area.
Maximum penalty:
(a) if the driving occasions death—200 penalty units, imprisonment for 2 years or both;
The indictment contained the charge of culpable driving alone. Upon being arraigned on the indictment, the accused pleaded not guilty, but offered a plea of guilty to the statutory alternative charge of negligent driving. The prosecution did not accept this plea and proceeded on the original indictment.
At this juncture, it is relevant to note that the Crimes Act 1958 (Vic) creates offences for culpable driving causing death and dangerous driving causing death or serious injury. An identical provision to s 29(7) of the ACT Crimes Act is contained within s 318(2)(b), which is in the following terms:
318Culpable driving causing death
(2)For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle—
…
(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
…
The issue
10. The requirement to provide clarity (or at least not leave the matter in opaque terms to a jury) in relation to what is meant by gross negligence was agreed by both parties in this matter. This requirement is uncontroversial, and has been addressed extensively in the case law. Refshauge J in R v Wolter (No 2) [2015] ACTSC 277; 302 FLR 1 (Wolter) at [36] stated that:
While, in R v Stephenson, the court held that no elaboration of the meaning of "gross" should be given to the jury, the court in R v De'Zilwa accepted that the suggestion from that case that the word "gross" had a natural and well understood meaning was no longer true and considered that "the time has come for juries to be given more assistance as to their task in cases of this kind."
11. Priest JA in Bouch at [138] stated that:
…past experience has demonstrated that, since ‘gross’ is not a word in common usage, juries frequently have asked for an explanation of its meaning.
12. To a great extent, the directions proposed by both parties were modelled on the directions given by Refshauge J in Wolter. In that matter, the accused was charged with, among other offences, culpable driving causing death by driving negligently, and pleaded guilty to the statutory alternative charge. In respect of these offences, and their relevant distinction, Refshauge J directed the jury as follows:
The negligence that's required for the charge of culpable driving causing death to be made out is a high level of negligence, called in the legislation, unjustifiable and gross negligence. That means that you must find that Mr Wolter's driving involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances as to amount to unjustifiable or gross negligence. That might be called a glaring or flagrant breach of the standards required of a careful driver.
13. Refshauge J relevantly continued:
It's the sort of driving that, if you saw it, you would condemn it out of hand. You would say that it's not an acceptable risk of the road. It's not the sort of thing that you recognise in yourself and forgive in others. It's outrageous. It's exposing other people on the road to a risk which is greater than the law can categorise as merely driving carelessly. It is, therefore, an unjustifiable and gross breach of the standards required of a careful driver.
14. The prosecution submitted that the following direction should be given in relation to gross negligence:
That means that you must find that Mr Spong’s driving involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances as to amount to unjustifiable or gross negligence. That might be called a glaring or flagrant breach of the standards required of a careful driver.
15. The accused submitted that the following direction should be given:
Another way of putting this is that the prosecution needs to satisfy you beyond reasonable doubt that Mr Spong’s driving fell so far short of the standard of care a reasonable person would have exercised, and involved such a high risk of death or serious injury resulting from his conduct that it constitutes gross negligence.
16. The submissions diverged as to how the jury is to be directed as to gross negligence. In particular, the prosecution submitted that a jury should be directed as to a “glaring or flagrant breach of the standards required of a careful driver”, whilst the accused submitted that directions should include that gross negligence involves a “high risk of death or serious injury”.
Submissions on reference to high risk of death or serious injury
17. The accused submitted that Refshauge J’s directions in relation to gross negligence should be adopted in this matter, with the addition of the direction gross negligence is constituted by driving that carries a “high risk of death or serious injury”, recommended by Priest JA at [139] of Bouch.
18. On that basis, the accused submitted that adopting the direction that gross negligence represents a high risk of death or serious injury does not equate to importing an additional element, it merely represents an explanation of the degree of the breach of duty of care that is implied by the term “gross”. The accused submitted that the only way to distinguish the particular level of negligence suggested by “gross” is to suggest that it involves a high risk of death or serious injury.
19. The prosecution submitted that Refshauge J’s directions should be adopted, with no addition of reference to risk of death or serious injury.
20. In relation to Bouch, the prosecution made the following written submission:
Internal inconsistency in Bouch directions
Priest JA states in Bouch (in setting out the 7 themes from the authorities) that:
“First, it was emphasised in several cases that when directing a jury on the elements of the offence under s 318(2)(b), a trial judge should in general confine himself or herself to the statutory text. Thus, the jury should be directed that a person drives ‘negligently’ for the purpose of this offence if he or she fails unjustifiably and to a gross degree to obseve the standard of care which a reasonable person would have observed in all the circumstances.”
“Secondly, although attempts to elaborate on the meaning of ‘gross’ are not forbidden, such attempts may be unwise (and synonyms such as ‘glaring, flagrant, monstrous’ should be avoided).
Priest JA then goes on to suggest a very precise formula:
“The jury should be told that ‘gross’ is an ordinary English word which should be given its ordinary meaning, but that it conveys the notion that the required negligence must be of a high order, involving a great falling short of the standard of care which a reasonable person would have exercised in all the circumstances.” , and involving a high risk that death or serious injury would follow from the relevant conduct
The formula proposed by Priest JA is clearly not in accordance with the language of the statute. Further, it clearly takes the ‘unwise’ step of elaborating on (further than necessary) the meaning of the word ‘gross’.
21. In additional written submissions, the prosecution submitted that the reference to “high risk of death or serious harm” has its genesis in the explanation of common law manslaughter from Nydam v The Queen [1977] VR 430, 445 (Nydam) relevantly as follows:
It is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm, but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.
22. The prosecution further submitted that the level of negligence required for culpable driving occasioning death was first conceived as necessarily mirroring the level of negligence required for manslaughter in the case of R v Shields [1981] VR 717 (Shields) relevantly as follows:
In our opinion if negligence in this sense is established the negligence proved is of the same degree as that required to support a charge of manslaughter.
23. The prosecution made further oral submissions on the relationship between the decisions in Nydam, Shields, and Bouch. The prosecution submitted that the decision of Priest JA in Bouch was an authority for the retirement of the concept of “merits punishment under criminal law” from jury directions. The prosecution submitted that while this particular point had become uncontentious following King v The Queen [2012] HCA 24; 245 CLR 588 (King) and Bouch, it was submitted that the reference to a high risk of death or serious harm, which comprised the first part of the same direction in Nydam and subsequent cases, should not be retained. The prosecution made oral submissions on that issue as follows:
Now, this particular point wasn’t, I would suggest, given significant consideration by Priest JA in Bouch. The history was recounted, but it wasn’t revisited to see if that was a proper application of principle.
24. The prosecution submitted that the differences in Victorian and ACT penalties for manslaughter and culpable driving offences was a factor in considering the relevance of Priest JA’s reasoning in Bouch to jury directions in the ACT. The prosecution submitted that the reasons for Priest JA’s decision in this regard, i.e. as to why “high risk of death or serious injury” could stand apart from the concept of meriting criminal punishment, was a range of Victorian cases considered by his Honour. The prosecution outlined that in Victoria, the maximum penalty for the offence of culpable driving has been increased to 20 years, which is equivalent to the Victorian maximum penalty for manslaughter. The prosecution submitted that this is in contrast to the ACT, where the maximum penalty for culpable driving is 14 years and the maximum penalty for manslaughter is 20 years.
25. On the basis of the maximum penalty, the prosecution submitted that adopting this direction is appropriate in the context of the legislative history of Victoria, but not appropriate on the basis of the ACT legislation.
26. The prosecution also questioned the persuasive authority of the Victorian Court of Appeal on this matter in oral submissions as follows:
Your Honour is not bound to follow the Court of Appeal in Victoria given the decision of Refshauge J, which specifically disavows the use of those words. Your Honour, I would submit, should follow the decision of Wolter both because, in my submission, it's the correct decision based on principles of legislative interpretation, the High Court in Baini and many other decisions. Logically, it is, in my submission, a correct decision and of course it would ensure consistency within this jurisdiction.
27. The prosecution elaborated on this point in oral submissions. The prosecution stated:
In the decision of Wolter, his honour gave consideration to the Victorian line of cases. Now, that was before the decision of Bouch, but he gave consideration and deviated from that.
In further oral submissions as to why a reference to high risk of death or serious injury would be inappropriate, the prosecution referred to Baini v The Queen [2012] HCA 59; 246 CLR 469 at [14], where a majority of French CJ, Hayne, Crennan, Kiefel and Bell JJ cited Fleming v the Queen [1998] HCA 68; 197 CLR 250 at [12] and stated:
"[t]he fundamental point is that close attention must be paid to the language" of the relevant provision because "[t]here is no substitute for giving attention to the precise terms" in which that provision is expressed. Paraphrases of the statutory language, whether found in parliamentary or other extrinsic materials or in cases decided under the Act or under different legislation, are apt to mislead if attention strays from the statutory text. These paraphrases do not, and cannot, stand in the place of the words used in the statute.
Submissions on directing on “glaring or flagrant”
The prosecution submitted that Refshauge J’s approach of staying close to the language of the legislation, and offering the Macquarie Dictionary definition to explain what is meant by gross, i.e. using the terms “glaring or flagrant”, is to be preferred to the approach of the Victorian Court of Appeal in Bouch, which preferred “high risk of death or serious injury”. The prosecution submitted that because “‘gross’ is no longer a word in common use”, it is appropriate to have recourse to the Macquarie dictionary definition. The prosecution submitted that the relevant definition of gross is number two against that word’s entry, being “glaring or flagrant”.
30. The prosecution pressed this in oral submissions, where reference was made to the decision in R v Stephenson [1976] VR 376. The prosecution acknowledged that in this decision, the Court suggested that the use of such synonyms is “unnecessary and may be unwise”, but nonetheless pressed this submission on the basis that it would be appropriate to follow Refshauge J’s formulation from Wolter.
The prosecution also made oral submissions that the formulation in Wolter, including “flagrant or glaring”, is to be preferred to the formulation in Bouch on the following basis:
There is of course a greater imperative on judicial comity with judges in – a judge in this jurisdiction, in that it is important that there is some consistency in the interpretation of law and how it is applied, so that citizens have some certainty about what the law is. The High Court often extols Courts of Appeal to consider the words of the legislation and trial judges too.
The accused made oral submissions that while the rest of Refshauge J’s direction from Wolter would be appropriate, the words “glaring or flagrant” would not assist a jury and that their inclusion would be both unhelpful and unwise.
Consideration
Comity
33. In order to determine the question of whether I should direct the jury in accordance with Bouch, a consideration of comity is required.
34. The case law is clear that the principle of comity has application in respect of substantially similar non-uniform State and Territory legislation where that legislation has been considered by an appellate court of another State or Territory jurisdiction.
35. In Fernando and Another v Commissioner of Police and Another (1995) 36 NSWLR 567 (Fernando), Clarke JA reviewed the case law in relation to comity in respect of substantially similar, but non-uniform state and territory legislation. On that basis, he concluded as follows at 589-590:
In light of these decisions the relevant principle should be taken as settled. This Court is not bound by the decision of another Australian intermediate appellate court on a statutory provision substantially identical with the one under consideration, but it should follow that decision as a matter of comity unless it is convinced that the earlier decision is clearly wrong or that considerations of justice require the court to decline to apply the decision of the other court.
This is, to my mind, a most important principle. It promotes greater uniformity and certainty in the law and avoids the plainly unsatisfactory situation which would arise if particular statutory words are regarded as having different meanings in different parts of the country.
36. Clarke JA relevantly continued at 590:
In an important respect the position is different from the one which arises when an appellate court, be it of a State or Territory reconsiders an earlier decision of its own and declines to apply it. In that instance the law as laid down in the latter case is taken it be the law of the State or Territory. Where, however, one State appellate court declines to follow a decision of another appellate court in Australia the consequence is, or may be, that there is an immediate inconsistency between the respective States or Territories and, of course, trial courts will be bound by the decision of the appellate court in their State or Territory. For this reason even greater caution should be exercised in deciding not to follow the existing authority of another state or territory.
37. In R v NZ [2005] NSWCCA 278; 63 NSWLR 628 (R v NZ), Howie and Johnson JJ, with whom Wood CJ at CL and Hunt AJA agreed stated at [160]:
The rule of comity referred to in Fernando appears to have application where the court is considering a decision of another Australian intermediate appellate court that has interpreted an identical or substantially similar provision in a State statute.
38. The majority in Tillman v Attorney General for the State of New South Wales [2007] NSWCCA 327; 70 NSWLR (Tillman) followed Clarke JA’s approach in Fernando. The majority of Giles and Ipp JJA decided at [110]:
We respectfully adopt Clarke JA’s explanation for the importance of comity between intermediate appellate courts in the construction of substantially similar State or Territory legislation. The place now occupied by the Federal Court in the Australian legal system adds to its unity, and to the desirability of consistency in interpretation of substantially similar non-national legislation. The public would be entitled to ask why the same words of a statute have different meanings in different States or territories, in the present case different meanings north and south of the Murray River. Being unpersuaded that TSL is plainly wrong, we consider that it should be followed.
39. In R v NZ, Howie and Johnson JJ, with whom Wood CJ at CL and Hunt AJA relevantly agreed, said at [166] that the rule of comity was not an inflexible and universal formula, and that the weight and respect attached to the decision of an intermediate appellate court concerning similar legislative provisions might be reduced where it was not the proper construction of the legislation that was under consideration but rather issues of practice and procedure involving the operation of the statutory provisions in their local context.
40. In Undershaft (No 1) Limited v Commissioner of Taxation [2009] FCA 41, Lindgren J considered the decisions in Tillman and Fernando favourably at [81] – [87].
41. On the basis of comity it is appropriate that I follow the approach of the Victorian Court of Appeal in Bouch unless I am persuaded that the decision is plainly wrong. As the authorities on comity discussed above make clear, it is unsatisfactory if particular statutory words are regarded as having different meanings in different parts of the country.
“High risk of death or serious injury”
42. I have outlined above at [33] – [41] that it is appropriate to follow the decision of an intermediate court of appeal from another jurisdiction in relation to substantially similar non-uniform legislation unless persuaded that it is plainly wrong.
43. It is clear that s 29(7) of the ACT Crimes Act and s 318(2)(b) of the Crimes Act 1958 (Vic) are substantially identical non-uniform national legislation. The Victorian provision is as follows:
318Culpable driving causing death
…
(2)For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle—
…
(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
(Emphasis added.)
…
The ACT provision is as follows:
29 Culpable driving of motor vehicle
…
(7) For this section, a person shall be taken to drive a motor vehicle negligently if the person fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case.
(Emphasis added.)
…
44. Although, as submitted by the prosecution, the maximum penalty of the Victorian offence and the maximum penalty of the ACT offence differ, I consider that the authorities on comity have application on the basis of the identical words of the legislative text. I do not accept that the different maximum penalties give rise to the conclusion that I should not follow the Victorian Court of Appeal.
45. The different maximum penalties of the ACT and Victorian offences cannot settle the question where the offences are cast in relevantly identical terms.
46. It is clear from the authorities on comity that I ought to depart from the decision in Bouch only in specific circumstances. That is, if I am persuaded that the decision is plainly wrong, or if the considerations of justice require that I do not apply the decision because it was not the proper construction of the legislation that was under consideration, but rather issues of practice and procedure involving the operation of the statutory provisions in their local context. The decision in Bouch was concerned with the proper construction for the purpose of jury directions of a phrase which is replicated in identical terms in the relevant ACT legislation, being “gross negligence”.
47. Priest JA outlined the themes which emerge from the relevant authorities as follows:
· First, it was emphasised in several cases that when directing a jury on the elements of the offence under s 318(2)(b), a trial judge should in general confine himself or herself to the statutory text. Thus, the jury should be directed that a person drives ‘negligently’ for the purpose of this offence if he or she fails unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all of the circumstances.
· Second, although attempts to elaborate on the meaning of ‘gross’ are not forbidden, such attempts may be unwise (and synonyms such as ‘glaring, flagrant, monstrous’ should be avoided).
· Third, however, in contemporary society ‘gross’ is not a word in common use (except, perhaps, as slang, and in a vernacular and imprecise sense).
· Fourth, past experience has demonstrated that, since ‘gross’ is not a word in common usage, juries frequently have asked for an explanation of its meaning.
· Fifth, ‘gross’ negligence is negligence of the same order as that which is necessary to found a conviction for negligent manslaughter.
· Sixth, juries may be assisted by a comparison with civil negligence.
· Seventh, flowing from the High Court decision in King, a trial judge should avoid introducing any requirement that the impugned conduct must merit criminal punishment.
48. The decision of Priest JA in Bouch was concerned with disavowing the latter part of the direction given in R v De’Zilwa [2002] VSCA 158 (De’Zilwa), i.e. “merits criminal punishment”, and affirming the inclusion in directions of ‘high risk of death or serious injury’. Priest JA stated at [139] as follows:
In the future, therefore, in my opinion a jury trying a charge under s 318(2)(b) ought to be directed that, for the purposes of culpable driving causing death by gross negligence, a person drives negligently if he or she unjustifiably and to a gross degree fails to observe the standard of care which a reasonable person would have observed in all of the circumstances. The jury should be told that ‘gross’ is an ordinary English word which should be given its ordinary meaning, but that it conveys the notion that the required negligence must be of a high order, involving a great falling short of the standard of care which a reasonable person would have exercised in all of the circumstances, and involving a high risk that death or serious injury would follow from the relevant conduct. It would usually also be helpful to explain that, since the required negligence must be of a high order, and must involve a high risk of death or serious injury, the kind of negligence which might be constituted by momentary inattention or a minor error of judgment, or which might found a simple civil claim for monetary compensation, generally would not be sufficient to support a finding of gross negligence. And it will be necessary, of course, to point to those matters which might go to constitute negligence of the high order necessary for conviction.
(Emphasis added.)
49. In their separate joint judgment, Redlich and Weinberg JJA agreed with Priest JA on this point insofar as to state at [1]:
So far as jury directions in this State are concerned, the decision in De’Zilwa should continue to be applied, save for the excision of any reference to meriting, or deserving, criminal punishment, or any such equivalent.
50. In a further separate joint judgment, Whelan and Ferguson JJA also agreed with Priest JA at [72] as follows:
We agree for the reasons they have given that juries should not be directed on a charge of culpable driving that they must be satisfied that the driving merits criminal punishment.
51. It is important to note at this juncture, that there is a prior decision of the Supreme Court, R v Antoniazzo [2010] ACTSC 36 (Antoniazzo), where the Victorian formulation, including the phrase “high risk of death or serious injury” was followed. Both Antoniazzo and Wolter were noted by the Victorian Court of Appeal in Bouch. In particular, Priest JA, without more, noted at [133] that in the wake of King, Refshauge J in Wolter declined to follow De’Zilwa.
52. Refshauge J did not have the benefit of the decision of the Victorian Court of Appeal in Bouch as it was decided at a later time.
53. I am not persuaded that Bouch is plainly wrong. Similarly, I am not persuaded that Bouch was confined to a question of local practice and procedure. I am persuaded by Priest JA’s reasoning, and in the interests of judicial comity it is appropriate that I follow the decision and include the phrase “high risk of death or serious injury” in the direction to the jury.
“Glaring or flagrant”
54. It will be clear from my reasoning above that in accordance with the decision in Bouch, the direction to the jury should not include the terms “glaring or flagrant”.
Orders
55. For the reasons outlined, I directed the jury in relation to gross negligence in accordance with Bouch as follows:
A person drives negligently for the purpose of the offence of culpable driving causing death, if that person fails unjustifiably and to a gross degree, to observe the standard of care that a reasonable person would have observed in all the circumstances. Gross is an ordinary English word that should be given its ordinary meaning. The required negligence must be of a high order involving a great falling short of the standard of care that a reasonable person would have exercised in all the circumstances and involving a high risk of death or serious injury would follow from the relevant conduct. The kind of negligence that might comprise momentary inattention or a minor error of judgment, or which might be the basis for a simple civil claim arising from a motor vehicle accident, for monetary compensation, would usually not be enough to support a finding of gross negligence.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: 16 May 2018 |
2
3