R v Tang (No 2)

[2019] ACTSC 21

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Tang (No 2)

Citation:

[2019] ACTSC 21

Hearing Dates:

8 February 2019

Decision Date:

8 February 2019

Before:

Loukas-Karlsson J

Decision:

The accused is not guilty of the statutory alternative offence of negligent driving pursuant to s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT)

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial – trial by judge alone – circumstantial case – verdict – accused found not guilty of negligent driving causing grievous bodily harm

Legislation Cited:

Crimes Act 1900 (ACT) s 49

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

Supreme Court Act1933 (ACT) ss 68D, 68E

Cases Cited:

Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; 188 A Crim R 82

Ex parte Musgrove; re Howard (1961) 78 WN(NSW) 88

Maritime Authority of NSW v Rofe [2012] NSWSC 5; 84 NSWLR 51

R v Pettman [2007] QCA 233

R v Tang [2019] ACTSC 4

Parties:

The Queen (Crown)

Chi Jun Tang (Defendant)

Representation:

Counsel

J Walker (Crown)

R Davies (Defendant)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Defendant)

File Numbers:

SCC 285 of 2017; SCC 286 of 2017

LOUKAS-KARLSSON J

Introduction

1.        On 18 January 2019, I returned the following verdict:

The accused Mr Tang is not guilty of the single count in the indictment dated 20 November 2017 of culpable driving causing grievous bodily harm.

2.        Further, I noted in the judgment (R v Tang [2019] ACTSC 4) that the prosecution relies on the statutory alternative of negligent driving causing grievous bodily harm, contrary to s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). This is the statutory alternative to the offence of culpable driving, pursuant to s 49 of the Crimes Act 1900 (ACT).

3.        I set out the elements of the statutory alternative at [183] of the previous decision:

The elements of this offence are:

(a)  That the accused drove a motor vehicle;

(b)  That the accused intended to drive the motor vehicle;

(c)  That the accused drove the motor vehicle negligently;

(d)  That the accused’s driving caused grievous bodily harm to another;

4.        Additionally, I indicated at [185] of the previous decision that before coming to a decision in relation to the statutory alternative of negligent driving causing grievous bodily harm, I would invite further submissions from the parties and that I proposed to enter a verdict on the statutory alternative at a later date.

Backup and Related Offences

5. It is appropriate at this juncture that I deal with the threshold question under Part 8 of the Supreme Court Act1933 (ACT) (the Act). Section 68D, provides under sub-section (2) that:

The court must deal with any back-up or related offence with which the accused person has been charged if the court considers that it is in the interests of justice.

6. The Act sets out a procedure under s 68E whereby the court shall deal with the backup or related offence under this part without a jury, and on the basis only of the evidence given during the trial of the accused person for any indictable offence at the same proceedings, and of any additional evidence given under this section.

7. In my view, it is appropriate for the Court to deal with the related offence, the statutory alternative, under s 68D(2), and I will deal with it in accordance with the procedure outlined in s 68E on the evidence given in the trial before me, a judge-alone trial of the accused person.

Negligent Driving Causing Grievous Bodily Harm

8.        In the previous decision, I made the following findings and those matters (a) to (g) are referred to in the written submission of counsel for the accused:

(a)       Mr Keir was injured while on the gravel area (at [161]); 

(b)       The accused drove TX 19 on to the gravel area (at [162]);

(c)       TX 19 was the only taxi in the area  (at [163]);

(d)       Mr Keir’s injuries were caused by a high energy impact consistent with Mr Keir being hit by the bumper bar of a car while standing up (at [164]);

(e)       The accused hit Mr Keir with his taxi and caused the relevant injuries (at [167]);

(f)        I was not satisfied beyond a reasonable doubt that the accused drove up on to the gravel to intentionally hit Mr Keir (at [178]); and

(g)       I was not satisfied beyond a reasonable doubt that the accused’s driving was otherwise culpable (at [178]).

9. The statutory alternative count under s 6 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) provides:

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; or

(b)   if the driving occasions grievous bodily harm – 100 penalty units, imprisonment for 1 year or both; or

(c)   in any other case – 20 penalty units.

(2)       In deciding whether an offence has been committed against subsection (1), the court must have regard to all the circumstances of the case, including—

(a)  the nature, condition and use of the road or road related area where the offence is alleged to have been committed; and

(b) the amount of traffic on, or that might reasonably be expected to have been on, the road or road related area.

(3) In this section: grievous bodily harm includes permanent or serious disfigurement.

Note      If an offence against this section occasions death or grievous bodily harm, automatic licence disqualification applies (see Road Transport (General) Act 1999, s 63).

10.      Whether the accused drove the motor vehicle negligently is the only element that is in contention in relation to this charge.

11. At [184] of the previous decision I discussed the relevant law regarding negligent driving for the purpose of s 6. Negligent driving in relation to this offence is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving departure from standard care for other users of the road to be expected of ordinary prudent drivers in the circumstances: see Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; 188 A Crim R 82 at [27]-[29] per Johnson J; Maritime Authority of NSW v Rofe [2012] NSWSC 5; 84 NSWLR 51 at [74] per Brereton J.

Submissions

12.      Counsel for the accused submitted that there is no room for an application of the doctrine of res ipsa loquitur in the criminal law and referred to the authority of Ex parte Musgrove; re Howard (1961) 78 WN(NSW) 88 at 89 and 120. Counsel also referred to the point made in R v Pettman [2007] QCA 233 at [22] that “it is wrong to reason back from the fact that a collision occurred to a conclusion that there must have been fault”.

13.      Counsel for the accused submitted that the accused found himself in circumstances that presented him with a “sudden and extraordinary emergency which he perceived to necessitate his taking immediate evasive action to avoid hitting Mr Kier”.  And he further submitted that “unfortunately for both of them, Mr Kier’s erratic and unpredictable behaviour and movements must have put him in the path of TX19 resulting in the collision” (submissions at [8]).

14.      Counsel for the accused further submitted that that TX19 ended where it did suggests the accused made a sudden and extraordinary manoeuvre “taken in the agony of the moment in an attempt to avoid hitting Mr Kier” (submissions at [9]).

15.      Finally, it was submitted that it has not been established on the evidence beyond a reasonable doubt that the accused drove TX19 in a manner involving a departure from the standard of care for other users of the road to be expected of the “ordinary prudent driver in the circumstances” and that accordingly the accused should be acquitted of this charge (submissions at [10]).

16.      An alternative submission was also made by counsel for the accused with respect to the common law defence of necessity.

17.      The prosecution elected not to make submissions with respect to the statutory alternative (T 232.39-40).

Consideration

18.      In my view, taking into account the evidence in the case and the findings that I have made in my earlier decision regarding the culpable driving charge it has not been established beyond a reasonable doubt that the accused drove TX19 in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances. 

19.      In the previous decision concerning culpable driving I set out the following reasons at [178]:

I am not satisfied beyond reasonable doubt that the accused drove up onto the gravel to intentionally hit Mr Keir. I am not otherwise satisfied beyond reasonable doubt that the accused’s driving was culpable on the evidence before me. I am not so satisfied for the following reasons:

(a)  The prosecution has identified as a motive that Mr Keir was “drunk, abusive, unable to give proper directions and otherwise difficult to deal with. He did not pay his fare. He punched the accused in the face”. Counsel for the accused submitted in relation to motive that:

It is drawing a very long bow to suggest that a middle aged man of good character, and as a taxi driver with experience of dealing with drunks, violent people and people who refused to pay their fare, would lose his self-control because of the actions of this particular drunk. And lose it in such a spectacular way.

I accept the submission of the accused in this regard. I am not satisfied that Mr Keir being intoxicated, abusive and otherwise difficult motivated the accused, an experienced taxi driver, to intentionally run Mr Keir over;

(b)  In the ROI the accused stated as he was about to drive away, Mr Keir:

(Q 154) Started to come towards my car and try to stop me and I saw that he wanted to stop me, then I took a very sharp left turn, ah towards the – like, where the concrete was in order to avoid, ah running into him.

…

(Q 165) Yeah so I reversed, I reversed at a very slow speed. Then when I saw that he was coming towards me, then I accelerated my car and I drove forward.

…

(Q 177) Yes, I want to avoid him because he was on the left, so I – I took the right side.

…

(Q 179) Yes I was – I was taking the right side, but he came towards me, so if he came towards me and tried to stop me on the right, so then I could only turn to the left to avoid him.

I am satisfied that it is a reasonable possibility that Mr Keir came towards the accused’s taxi as he was about to drive away;

(c)  In the ROI, the accused stated “I believe I didn’t hit him”;

(d)  The accused’s version that he was trying to avoid hitting Mr Keir is a reasonable alternative hypothesis. The prosecution case of the taxi hitting Mr Keir intentionally is not the only reasonable inference to be drawn on the evidence in this case; 

(e)  The prosecution conceded that Mr Keir was “drunk”, “abusive” and “difficult” in the submission on motive. These characteristics are equally consistent with the accused’s version of attempting to drive around Mr Keir, who was behaving in a “drunk”, “abusive” and “difficult” fashion. I am not persuaded, after direction, that this is a lie. Nor am I persuaded, after direction, that the taxi leaving the area is evidence of flight;

(f)   In relation to the scratch marks on the taxi matching the white marks on the Give Way sign, the accused in his police interview conceded he may have scraped the pole (Q 192-Q 193).  What this suggests is that the manoeuvre was undertaken by the accused as an emergency measure in the urgency of the moment when he had little time or opportunity to consider the route he was needing to take in order to avoid coming into contact with Mr Keir, rather than a deliberate case of intentional driving toward Mr Keir. It should be noted that on the accused’s version, Mr Keir had told him that he was an AFP officer. It is unlikely in my view that the accused would deliberately run over someone he had just allowed out of his taxi having been told he was an AFP officer; and

(g)  Finally, the evidence of good character is relevant. I have directed myself in relation to good character. As a person of previous good character, the accused is less likely to have committed the offence of intentionally running over Mr Keir.

20.      For the same reasons I am not satisfied beyond a reasonable doubt in relation to negligent driving. I therefore acquit the accused Mr Tang of the statutory alternative.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson.

Associate:

Date: 23 December 2019