R v Ward

[1995] QCA 530

IN THE COURT OF APPEAL	[1995] QCA 530
SUPREME COURT OF QUEENSLAND	C.A. No. 311 of 1995
Brisbane
Before	Fitzgerald P. Pincus J.A. Mackenzie J.
[R. v. Ward]

T H E Q U E E N

v.

LOUIS WARD (Appellant)

FITZGERALD P.
PINCUS J.A.

MACKENZIE J.

Judgment delivered 05/12/1995

JOINT REASONS FOR JUDGMENT FITZGERALD P. AND MACKENZIE J. SEPARATE

REASONS OF PINCUS J. DISSENTING IN PART

Appeal allowed.

Conviction quashed. A verdict of acquittal is entered.

CATCHWORDS:	CRIMINAL LAW - conviction - dangerous driving - inconsistent verdicts
Counsel:	J. Jerrard Q.C. with him J. Lippet for the Appellant J. Henry for the Crown
Solicitors:	Robertson Foster for the Appellant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	10 October 1995

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND MACKENZIE J.

Judgment delivered 05/12/1995

The appellant has appealed against his conviction in the District Court at Dalby on 13 July 1995 of an offence of dangerous driving on 19 August 1994. The jury had immediately beforehand acquitted the appellant of dangerous driving causing grievous bodily harm while adversely affected by alcohol and of dangerous driving causing grievous bodily harm. The appellant’s contention in this Court is that his conviction cannot stand because, in the circumstances, it was inconsistent with his acquittal on the charge of dangerous driving causing grievous bodily harm.

The indictment presented against the appellant and on which he was convicted was in the following terms:

“That on the 19th day of August 1994 at Dalby in the State of Queensland you did drive a motor vehicle namely a Ford Falcon station wagon on a road namely Moonie Highway aforesaid dangerously and thereby caused grievous bodily harm to one Wayne Kenneth Newton.

And that at the time aforesaid you were adversely affected by an intoxicating substance namely alcohol.”

Prior to the prosecutor’s opening address, the appellant made formal admissions in the following terms:

“(1)	he was driving a 1973 Ford station sedan north along the Moonie Highway at about 7 p.m. on Friday 19 August 1994;
(2)	at that time his vehicle was travelling at between 100 and 110 kms/hr;
...
(3)	the accused formally admits that about one kilometre from Dalby and facing north the roadway curves to the right;
(4)	at about the commencement of that curve the accused’s vehicle swerved onto the gravel on its correct side of the roadway;
(5)	shortly after that occurred the accused’s vehicle travelled onto its incorrect side of the roadway;
(6)	the accused’s vehicle then collided with a Holden Commodore utility travelling south at about 100 kilometres an hour along the Moonie Highway;
(7)	the Holden commodore utility was being driven at that time by a Mr Wayne Newton;
(8)	as a consequence of that collision Mr Newton suffered injuries which amount in law to grievous bodily harm;
(9)	prior to the collision Mr Newton was not injured; and
(10)	at all times prior to and at the time of the collision Mr Newton’s vehicle was on its correct side of the roadway and it in no way contributed to the cause of the collision.”

In the circumstances, there might theoretically have been two issues for the jury’s determination; namely, whether the appellant’s driving was:

(i)         dangerous;

(ii)        the cause of the collision (as distinct from some other possible cause such as mechanical defect).

The verdicts might then have been reconciled if the evidence left open the possibility that some act or event might have supervened between the appellant’s dangerous driving and the collision, and caused the collision.

That was not the prosecution case, which was that the appellant’s dangerous driving caused the collision. No attempt was made to differentiate between the driving by the appellant which the prosecution alleged was the cause of the collision and some earlier driving by the appellant which was dangerous. Indeed, such a course could not have been justified, as the prosecution evidence established only a brief sequence of events, in which, to quote from the prosecution’s written outline of argument in this Court:

“... the [appellant’s] vehicle moved partially off the bitumen road surface and then moved abruptly back onto and across the road into the path of an oncoming vehicle driven by Wayne Newton, who suffered grievous bodily harm in the collision.”

At trial the Judge and both counsel effectively agreed, prior to her Honour’s summing up, that a conviction for dangerous driving was not reasonably open to the jury if it acquitted the appellant of dangerous driving causing grievous bodily harm, and her Honour took a separate verdict on the count of dangerous driving from the jury only because counsel for the appellant requested her to do so.

In my opinion, a reasonable jury, acting reasonably, could not, in the circumstances, have convicted the appellant of dangerous driving having acquitted him of dangerous driving causing grievous bodily harm. The verdicts cannot stand together and the appeal must be allowed and the conviction quashed.

The further question then arises whether a verdict of acquittal should be entered or a retrial ordered. Obviously, there should not be a retrial unless it is open to a fresh jury to convict the appellant of the offence of dangerous driving despite this Court’s conclusion that his present conviction for that offence is, in the circumstances, inconsistent with his acquittal of dangerous driving causing grievous bodily harm.

The reason for the present inconsistency is that it is implicit in the appellant’s acquittal of the offence of dangerous driving causing grievous bodily harm that the jury was not satisfied to the requisite standard that the appellant had driven dangerously. That being so, the appellant could not now be convicted of dangerous driving in respect of the driving which was the subject of the indictment: Criminal Code, s. 17, and sub-ss. 598(4) and (5). And see, generally, Rogers v. R. (1994) 123 A.L.R. 417. Accordingly, a verdict of acquittal should be entered.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 05/12/1995

Verdicts Inconsistent

As is explained in the reasons of the President and Mackenzie J, the jury was invited to consider whether the appellant was guilty of dangerous driving, as well as considering whether he was guilty of dangerous driving causing grievous bodily harm. That was done at the request of the appellant’s counsel, who now argues that the two verdicts are inconsistent; he says, correctly in my view, that there was no rational basis on which a jury could be satisfied of dangerous driving, but not of dangerous driving causing grievous bodily harm, because the latter element was not in issue. The verdicts must have been the result of some confusion on the jury’s part, or perhaps there was a compromise.

The Crown case was that the appellant’s dangerous driving brought about a collision which in turn caused the grievous bodily harm. The only way in which the conclusion that the verdicts are inconsistent can be avoided is by finding a basis on which the jury could have failed to be satisfied of one of these two causal connections - i.e. that between the driving and the collision, or that between the collision and the grievous bodily harm. The second causal connection was admitted, so that one must focus on the first; that is, the guilty verdict can stand only if there was a basis on which the jury might not have been satisfied that the dangerous driving complained of caused the collision.

There was some evidence from the Crown, of a rather confused kind, about a broken tie-rod and it is perhaps possible that the jury entertained the thought that the tie-rod evidence was a basis for doubting whether the collision was due to dangerous driving rather than to a break in a tie-rod. But even if such a doubt would have been a rational one, that hypothesis cannot save the verdict. That is so because the dangerous driving of which the prosecution complained was that which caused the collision; if the jury were not satisfied that such driving was proved, then it was not open to them to consider another case, of dangerous driving not causing the collision. One can imagine circumstances in which a jury might sensibly consider such an alternative case and decide that, although a collision which has occurred after a course of dangerous driving was due to some mishap for which the accused was not to blame, nevertheless dangerous driving was made out; but the facts of this case could not support that view. Here, no reasonable jury applying their minds properly to the case could have arrived at the type of conclusion I have mentioned: cf. Dell’Albani (1990) 49 A.CrimR. 294 at 296. It follows that the learned primary judge should not have been asked to leave dangerous driving simpliciter to the jury, since that course would necessarily create a risk, which has eventuated, of inconsistent verdicts.

Grievous bodily harm not being in question, the Crown case was such that dangerous driving without that element was not open, as the appellant’s counsel now concedes and indeed submits. I should add that I am quite satisfied that the appellant’s counsel, although the course he advocated below was a mistaken one, did not request that a verdict be taken on dangerous driving with any other than an honest intention. This case, however, points up the undesirability of leaving to the jury’s consideration a verdict which is not in truth open.

Effect of S. 17 of Code

I therefore agree with the opinion of the President and Mackenzie J that the appeal must be allowed and the conviction quashed.

It was submitted on behalf of the appellant that if there were a new trial the appellant, having a defence under s. 17 of the Code, must be acquitted. The basis of that defence would be, as I understood the argument, the conviction and acquittal upon the indictment which is set out in the reasons of the President and Mackenzie J; it was open upon that indictment to convict the appellant of dangerous driving simpliciter and that is of course what happened. Section 17 reads as follows:

" It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged. "

It is necessary to read s. 17 and the complementary subsections in s. 598 together with the power to order a new trial, in s. 669. It was held in Kelly (1923) 32 C.L.R. 509 at 516, 517, where the indictment was for murder and the conviction one of manslaughter, that the conviction may be set aside and a new trial ordered on a charge of manslaughter only. That case was followed in Miller [1951] V.L.R. 346 and in Hanias (1976) 14 S.A.S.R. 137. In Miller there was the difference that the conviction was for murder; but it was held that Kelly justified an order for a new trial on manslaughter. In Hanias the conviction was for robbery and the question was whether there should be a new trial on simple larceny; it was held that a new trial could be ordered, but that on the facts such an order would be inappropriate.

These three decisions were not in Code states. In Callaghan (1952) 87 C.L.R. 115 the High Court had to consider a Western Australian case in which the charge was manslaughter and an alternative verdict of dangerous driving causing death was returned. The Court said:

" The verdict of the jury, while finding the appellant guilty under section 291A, acquitted him of manslaughter. He ought not therefore to be tried again for manslaughter. But that is the crime for which he was indicted. There was no count under s. 291A. The verdict of guilty of the crime created by s. 291A was found as one allowed by s. 595 on an indictment for manslaughter. Nevertheless according to Kelly v. The King (1923) 32 C.L.R. 509 it is possible for this Court to order a new trial upon a charge which, like that under s. 291A, is not made by the indictment but is one of which the prisoner may be found guilty on the indictment. " (124, 125)

The Court decided not to order a new trial, in all the circumstances.

The Court in Callaghan made no reference to s. 17 of the Western Australian Code, whose terms are substantially identical with our s. 17. Although the assumption seems to have been made that the principle applied in Kelly had relevance despite s. 17, it is difficult to treat the decision as authoritative with respect to the meaning of that provision.

The means of reconciling the power to order a new trial with the terms of s. 17 seems clear enough, in the simplest case where the indictment is for offence A and the conviction for offence A. If there is an appeal against conviction which is successful then s. 669 empowers the Court to order a new trial. On a further trial for offence A, does s. 17 provide a defence? Section 17 has two rules in it. The first is inapplicable to the case I have postulated, because it contemplates that the accused "might have been convicted" of the offence presently charged; where the accused has in fact been convicted of the offence presently charged it is the second rule which is to be looked at. The result of that second rule, reading s. 17 in isolation, is that it would be pointless to order a new trial on a charge of offence A, because the successful appellant has already been convicted of that very offence - to adapt the words of the section, he has already been convicted of an offence, namely offence A, of which he might be (again) convicted upon the indictment charging offence A. To give effect to the Court’s power under s. 669, to order a new trial on an appeal against a conviction, one must reconcile the two provisions. That can be done by reading s. 17, where it refers to a person who has "already been convicted", as not covering the case in which the conviction has been set aside on an appeal in which a new trial has been ordered. If that is not done, then s. 669 has no practical effect.

The present is not the simplest case, just postulated - where there is a charge of offence A and conviction of offence A - but one where the charge is of offence A and the conviction for offence B. That conviction being set aside, is it possible for an order for a new trial on offence B to be effective? The first rule in s. 17 does not apply, for B is not an offence of which the accused "might have been convicted" previously, but one of which he has been convicted. It is the second rule which, reading it without regard to s. 669, prevents a new trial on charge B. But, again, it is my view that the prior conviction for offence B, having been set aside on appeal, does not prevent the making of an order for a new trial in that appeal on a charge of offence B.

To apply that to the present case, the result of the previous trial does not constitute an objection to the grant of a new trial on a charge of dangerous driving simpliciter. It is the second s. 17 rule and not the first rule which requires consideration, because the offence of dangerous driving is not one of which the appellant "might have been convicted"; it is one of which he has "already been convicted" within the meaning of the second rule. For the reasons I have explained, the second rule is inapplicable; a conviction which has been set aside on appeal is not an objection to the grant of a new trial on the charge of which the appellant has been convicted.

The general law relating to the power to order a new trial and the exercise of that power where a conviction is quashed without entering a verdict of acquittal are discussed in Nicholas (Tasmanian Court of Criminal Appeal, C.A. No. 65 of 1989, 17 November 1989, unreported). The view taken was that where there is not a verdict of acquittal entered on appeal, but rather an order for a new trial, "the issues raised by the indictment will remain justiciable" (per Cox J, p. 10).

It is perhaps worth mentioning that a separate problem arises in cases like Miller (above) where the order for a new trial relates to a lesser offence (manslaughter) than that of which the appellant has been convicted (murder). In such a case the first rule in s. 17, read without regard to s. 669, applies; it may be thought that s. 669 requires that the first rule be read down so as to permit a new trial on the lesser charge, but it is unnecessary to reach a conclusion on that point in the present case.

I should add that a problem having some resemblance to that I have attempted to deal with was discussed in Davern v. Nestle (1984) 155 C.L.R. 21; I am inclined to think that the result there arrived at is of little or no assistance in ascertaining the proper means of reconciling s. 17 with s. 669 of the Code. There are no doubt many cases the results of which are consistent with the view that s. 17 must be read down to allow for new trials under s. 669; Brennan (1936) 55 C.L.R. 253 is a well-known example.

I therefore reject the submission that the remedy of a new trial on a charge of dangerous driving is unavailable.

I have noted that the President and Mackenzie J are of opinion that it is implicit in one of the verdicts that the jury was not satisfied that the appellant had driven dangerously; their Honours conclude that the appellant cannot now be convicted of dangerous driving and refers to s. 17.

In my respectful opinion, s. 17 has no operation in the present circumstances, for reasons I have attempted to explain. Further, I do not think it is implicit in the jury’s verdicts that dangerous driving was not proved; the jury convicted the appellant of that very offence. They did so on a strong Crown case and the offence of which they convicted was not by any means a trivial one.

I would allow the appeal, set aside the conviction, and order a new trial on the charge of dangerous driving.