R v Thomas
[2001] QSC 298
•3 August 2001
SUPREME COURT OF QUEENSLAND
| CITATION: | R v Thomas [2001] QSC 298 |
| PARTIES: | THE QUEEN (Crown) V THOMAS (Applicant) |
| DIVISION: | Trial Division |
| FILE NO: | 92 of 2000 |
| DELIVERED ON: | 3 August 2001 |
| DELIVERED AT: | Rockhampton |
| HEARING DATE: | 23 May 2001 |
| JUDGE: | Dutney J |
| ORDER: | Application dismissed |
| CATCHWORDS: | CRIMINAL LAW – MANSLAUGHTER – NEGLIGENCE – STAY OF INDICTMENT – Whether allowing an underage incompetent person to drive a motor vehicle can amount to criminal negligence |
COUNSEL: SOLICITORS: | Mr Clarke for the Applicant DPP for the Crown David Mills Lawyers for the Applicant |
DUTNEY, J: The applicant has been committed for trial on a charge of manslaughter by negligence. This followed a coronial inquiry into the death of Rachel Sherie Allan. Ms Allen was the driver of a vehicle which left the Burnett Highway approximately 4 kms west of the Bruce Highway around midnight or a little after on Saturday 13 July 1996.
The applicant seeks to have the indictment stayed pursuant to s.592A of the Criminal Code. Three grounds are relied on. Firstly it is said that no prima facie case is made out. Secondly there is said to be such delay in the proceedings as to amount to injustice. Thirdly, it is said that the Crown has no reasonable prospect of success.
To consider these submissions it is necessary to consider the Crown case at its highest. The facts considered on that basis are as follows:
· The deceased was the driver of a motor vehicle involved in a single vehicle accident about midnight on 13 July 1996.
· This accident caused her death.
· The vehicle was owned by the applicant.
· The applicant was aged 42 at the time of the accident.
· The applicant was in the back seat of the vehicle at the time of the accident.
· Another person, Janelle Elizabeth Parsons was the passenger in the front seat at the time of the accident.
· Both the deceased and Miss Parsons were 16 years old at the relevant time and neither was licensed to drive.
· The applicant knew Miss Parsons before the relevant night but did not know the deceased.
· The applicant met up with the deceased and Miss Parsons on the night of 12 July 1996.
· The deceased had a blood alcohol reading of 0.071% at the time of death.
· There is no evidence which would allow the jury to conclude that the applicant knew that the deceased had been drinking.
· The applicant and Miss Parsons had driven the vehicle to Mt Morgan.
· At the top of the range the deceased got into the drivers seat of the vehicle but the applicant did not permit her to drive.
· Miss Parsons drove down the range. The deceased then took the wheel from Bouldercombe to the accident point.
· While the deceased was driving Miss Parsons formed the view that the deceased was talking and not paying attention.
· The vehicle started to go onto the wrong side of the road.
· Miss Parsons grabbed the steering wheel.
· The vehicle moved sharply left, then right, and left the road.
· When initially questioned the applicant lied about who had been driving, nominating himself.
· After the collision the applicant pulled the deceased from the driver’s seat to the passenger seat.
· When asked why he initially lied the applicant said, in part, that he didn’t think the girls were licensed.
From his belief that the girls were unlicensed and the fact that the applicant would not allow the deceased to drive down the Mount Morgan range a jury may infer that the applicant had doubts as to the ability of the deceased to drive safely on that terrain.
The relevant provision of the Criminal Code is s289. That provides:
“It is the duty of every person who has in the person’s charge or under the person’s control anything, whether living or inanimate, and whether moving or stationery, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, or any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger, and the person is held to have caused the consequences which result to the life or health of any person by reason of any omission to perform that duty.”
In my view the jury is entitled to conclude that a motor vehicle is a thing to which the section refers. Allowing another person to drive the vehicle is arguably a relevant act if done in the knowledge or belief that the person being permitted to drive was not competent to do so. Whether the negligence was criminal so as to lead to a conviction in reliance on s.289 is a question of degree. In R v. Pesnak [2000] QCA 245 the Court of Appeal reaffirmed that to be criminal the negligence must constitute an extreme deviation from reasonable community standards. Elsewhere this has been referred to as “recklessness involving grave moral guilt.”: R v. Hodgett and Jackson [1990] 1 Qd R 456.
The death may be caused directly or indirectly (see s.293). It thus does not seem to me to necessarily matter that the immediate and direct cause of the accident may have been Miss Parsons grabbing of the steering wheel.
The Crown case does not impress me as a particularly strong one and one would expect the Director to seriously consider whether to pursue it. There is no evidence that the applicant was affected by alcohol or knew the driver was. It might be thought that only allowing the deceased to drive after the more difficult mountainous section of the route was finished exhibited some concern for safety. It is not necessarily improper to allow an unlicensed driver to drive. The driver may be a learner although, of course, the licensed driver must be in the front. An unlicensed person may be competent even though unlicensed. Nonetheless if one applies the principles stated in Doney v. R (1990) 171 CLR 207 at 214-215 there is in my view evidence, albeit weak, which if taken into account by the jury in its deliberations is capable of supporting a verdict of guilty. The case is such that the jury may conclude that the applicant knew the deceased was unlicensed and was not a competent driver. It is open to a jury to conclude that permitting her to drive late at night, at speed, in those circumstances was sufficiently reckless to satisfy the test of “grave moral guilt”.
The second ground on which a stay is sought is delay. I am not persuaded that a delay since July 1996 is so gross as to result in injustice.
The third ground relied on is the unlikelihood of a conviction. The evidence is analysed above. Having regard to Doney v. R (supra) I do not think it is appropriate to stay the prosecution in the exercise of a discretion where the evidence is such that a jury could convict.
Accordingly the application to stay the indictment is refused.
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