R v Wolter (No 2)
[2015] ACTSC 277
•4 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wolter (No 2) |
Citation: | [2015] ACTSC 277 |
Hearing Date: | 4 September 2015 |
DecisionDate: | 4 September 2015 |
Before: | Refshauge J |
Decision: | A direction will be given to the jury in accordance with the terms of s 29 of the Crimes Act 1900 (ACT), with appropriate elaboration as to the meaning of "gross". |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – trial – culpable driving causing death – jury direction – negligence – gross negligence – criminal negligence – equivalence to manslaughter – statutory alternative – negligent driving causing death – plea of guilty to a lesser charge – potential source of confusion for the jury – direction in accordance with the terms of the legislation |
Legislation Cited: | Australian Capital Territory (Self-Government) Act 1988 (Cth), s 34(4) Crimes (Penalties) Amendment Act 2011 (ACT) Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 6 |
Cases Cited: | Andrews v DPP [1937] AC 576 King v the Queen (2012) 245 CLR 588 Re Lamperd v Courts Martial Appeal Tribunal (1983) 46 ALR 371 |
Texts Cited: | The Laws of Australia (Thomson Reuters, Sydney, Update 286) v.10, Subtitle 10.9 “Motor Vehicle Offences” 301; [10.9.560] |
Parties: | The Queen (Crown) Dylan Wolter (Accused) |
Representation: | Counsel Mr T Hickey (Crown) Mr J Sabharwal (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 177 of 2014; SCC 178 of 2014 |
Refshauge J:
On 16 August 2013, a collision occurred on Mawson Drive, Mawson, in the ACT, between a car being driven by the accused, Dylan Wolter, and a pedestrian, Natalie Ashley. Mrs Ashley died as a result of the collision. Mr Wolter was charged with, among other offences, culpable driving causing death by driving negligently.
In a practice I have endeavoured, not always successfully, to follow in recent times, I gave to the parties, in draft, the directions I proposed to give to the jury, not for editorial comment but so that substantive submissions could be made to me about any errors of omissions or commission counsel considered I had made in the directions of law I proposed to give.
As a result, counsel for the Crown, Mr T Hickey, submitted that the direction I proposed to give as to negligence was not correct and should not be given. The proposed direction was in the following terms:
The negligence that is required for a charge of culpable driving causing death to be made out is a high level of negligence, called in the legislation “unjustifiable” or “gross negligence”.
That means that you must find 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, and which involved such a high degree that death or serious injury would follow, that his driving causing death deserving criminal punishment.
Mr Hickey submitted that this test was that applicable to a charge of manslaughter and too high a test for the offence. Mr J Sabharwal, counsel for Mr Wolter, submitted that I was correct in my proposed direction.
The offence
Mr Wolter was charged with an offence contrary to s 29 of the Crimes Act 1900 (ACT), (the ACT Crimes Act), which is in the following terms:
29Culpable 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.
NoteSection 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.
NoteUnder the Road Transport (General) Act 1999, s 62 (Automatic disqualification for culpable driving), if a person is convicted, or found guilty, of an offence against this section, the person is automatically disqualified from holding or obtaining a driver licence.
(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.
This section was introduced in 1990, replacing a provision (then s 52A of the ACT Crimes Act), criminalising culpable driving where death was occasioned by impact with a vehicle and, at the time of the impact, the vehicle was being driven either under the influence of intoxicating liquor or of a drug or at a speed or in a manner dangerous to the public. This provision was in the same terms as the provision in the s 52A of the Crimes Act 1900 (NSW). The ACT Crimes Act also included, at the time, a provision of s 54 in the following terms:
54.Whosoever by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years.
It is said that s 29 of the ACT Crimes Act was the model for s 318 of the Crimes Act 1958 (Vic) (the Victorian Crimes Act), which is in relevantly identical terms - see The Laws of Australia (Thomson Reuters, Sydney, Update 286) v.10, Subtitle 10.9 “Motor Vehicle Offences” 301; [10.9.560]. I have, in the time available, not been able to explore or verify that claim, though it is relevant to my consideration of the issue.
The issue
Mr Hickey submitted that as the offence in this jurisdiction was not punishable with the same maximum penalty as manslaughter, which, under s 15 of the ACT Crimes Act, is punishable by a maximum penalty of 20 years imprisonment, the test should not be the same as for manslaughter.
This followed, he submitted, from the reasoning of the Victorian Court of Appeal in R v De'Zilwa (2002) 5 VR 408. In that case, Charles JA, with whom Ormiston JA and O'Bryan AJA agreed, held, at 432; [46], that a judge directing a jury deliberating in a trial where the accused was charged with an offence under s 308 of the VictorianCrimes Act, namely culpable driving, should not simply use the words of the statutory test in s 318(2)(b) in relevantly identical terms to s 29(7) of the ACT Crimes Act, as had been directed in cases such as R v Horvath [1972] VR 533 at 539 and R v Lucas [1973] VR 693 at 701, but should do so "in future" in such cases:
… 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.
R v De'Zilwa was shortly followed by the Victorian Court of Appeal in R v Mitchell (2005) 44 MVR 567 at 569; [9] where the same test was again articulated.
This was the test applicable to establish manslaughter by criminal negligence as articulated in Nydam v The Queen [1977] VR 430 at 445. There appears to have been some uncertainty as to whether that test applied in the Territory as recently as 2000. See MR (2000) 116 A Crim R 23 at 30. This test, which has been referred to on many occasions, has however, been approved by the High Court in Patel v The Queen (2012) 247 CLR 531 at 538; [18] and, as a consequence, applies in this Territory.
Mr Hickey submitted, however, that the reasoning that led his Honour to indicate the change in direction from the use of terms in the section itself to the cited direction, consistent with a direction for the offence of manslaughter, was that in Victoria, the maximum penalty had been increased to align it with the maximum penalty for the crime of manslaughter and it was this that caused the Court to adopt the change. Thus, Charles JA said in R v De'Zilwa, at 422; [43]:
When the four last-mentioned cases were decided, the maximum imprisonment for manslaughter was 15 years, whereas for culpable driving it was seven years. The maximum term for culpable driving first became the same as for manslaughter when it was increased to 15 years in 1992. In 1997 the maximum term for both was increased to 20 years. In recent years judges of this court have on numerous occasions stated that culpable driving is a species of involuntary manslaughter, and is punishable as such, emphasising that the gross departure from the standard of reasonable care of which the section speaks is the equivalent of criminal negligence sufficient to support the crime of manslaughter ...
The reference to “the four last-mentioned cases” by his Honour was to the R v Horvarth, R v Lucas, R v Stephenson [1976] VR 376, (in which latter case the court had discouraged judges from explaining the meaning of “gross” in the term “gross negligence” but otherwise approving the approach of the earlier cases, namely to use the words of the section) and R v Shields [1981] VR 717, where the Court, although adhering to the approach in R v Horvarth and R v Lucas, held, at 724, that negligence under s 318 of the Victorian Crimes Act was the same degree as that required to support a charge of manslaughter.
Though the maximum penalty for an offence of culpable driving in this jurisdiction was increased in 2011 by the Crimes (Penalties) Amendment Act 2011 (ACT) from 7 years to 14 years, it was not then, and has never been, the same maximum penalty as for manslaughter which was, at all relevant times, 20 years imprisonment.
Consideration
The question of the test for negligence in the criminal context seems first to have been considered in this Territory in respect of what was then s 54 of the Crimes Act 1900 of the State of New South Wales in this application for the Australian Capital Territory (ACT) (the Applied NSW Act), the predecessor to the ACT Crimes Act which became an enactment on self government (s 34(4) of the Australian Capital Territory (Self-Government) Act 1988 (Cth)).
In R v Leskinen (1978) 23 ACTR 1 at 4, Blackburn CJ held that the standard of negligence required by s 54 of the Applied NSW Act was “the high standard of negligence appropriate to manslaughter”. His Honour did not, however, articulate the direction that he proposed to give to the jury, though it may be assumed that it would have been in accordance with that prescribed in Nydam v the Queen, then a recently decided case of an intermediate appellate court, albeit in another jurisdiction.
That decision in R v Leskinen was regarded as applicable to cases of negligent driving causing death and, arguably, culpable driving under the subsequent s 52A of the ACT Crimes Act.
R v Leskinen was followed in New South Wales in R v D [1984] 3 NSWLR 29 at 34 where the court pointed out that it was necessary to differentiate the standard of criminal negligence from the civil standard.
It appears that part of the justification for this approach may have been in the genesis of the creation of the offence which ultimately became culpable driving, namely that since manslaughter was, at the time, a capital offence, juries were reluctant to convict because of the “awful” consequences, so the alternative offence was introduced with a lesser penalty. See Andrews v DPP [1937] AC 576 of 582; and Re Lamperd v Courts Martial Appeal Tribunal (1983) 46 ALR 371 at 375.
There does not seem to have been any further consideration in this Territory of the test for negligence in a charge of culpable driving, at least so far as my researches have been able to find – and none were advised to me by counsel – until 2010 where Gray J held in R v Antoniazzo [2010] ACTSC 36 at [13] that, in a trial by judge alone, he should direct himself in the same terms as was held by the justices of appeal in R v De’Zilwa, which his Honour then did.
This approach is consistent with the common law. The High Court, in King v the Queen (2012) 245 CLR 588 at 598-604; [22]-[34], traced a distinction between negligence required for involuntary manslaughter at common law by criminal negligence and civil negligence to the 17th century. Later in R v Doherty (1887) 16 Cox CC at 309, Stephen J directed a jury to “find that [the accused] is guilty of culpable negligence and ought to be punished”.
In 1925 in R v Bateman (1925) 19 Cr App R 8 at 11-12, Lord Hewart CJ articulated the test in terms similar to the that set out in Nydam v the Queen, namely that:
... the negligence of the accused went beyond a matter of mere compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.
This was the source of the test ultimately articulated by the Full Court of the Supreme Court of Victoria in Nydam v the Queen.
In King v the Queen, the High Court was considering directions given to the jury in a case where the appellant was convicted of an offence against s 319 of the Victorian Crimes Act. At issue was the way in which the alternative verdict for the lesser offence under s 319, namely for the offence of dangerous driving causing death, was left to the jury.
The plurality held (at 608; [44]) that the lesser charge was not to be treated as “a species of the genus of criminal negligence”.
The plurality then considered the common law concept of “negligence deserving of punishment by the criminal law” which “had its origins in attempts by the common law to set a threshold for the level of criminal negligence necessary to establish manslaughter per infortunium”. The Court continued, at 608; [45]:
Despite its pedigree, the further transposition of that form of direction to the offence of culpable driving causing death under s 318 of the Crimes Act and similar offences in other States and Territories of Australia is questionable. It assumes that the jury understands the concept of negligence sufficient to ground civil liability. In Buttsworth the common law principle that criminal negligence differs in degree from civil negligence mutated into the proposition that "[n]egligence in the criminal sense is … a different concept from negligence in civil law." [Buttsworth at 677 per O’Brien CJ of Cr D (emphasis added)]
Although in dissent on the outcome of the appeal, Bell J addressed the issue at 620-1; [80]-[83]:
80The direction that the accused's conduct must merit criminal punishment derives from R v Bateman, in which a medical practitioner appealed to the English Court of Criminal Appeal against his conviction for the negligent manslaughter of a patient. The direction proposed in Bateman was designed to impress upon the jury the distinction between liability in tort and the higher degree of negligence required to support liability for manslaughter.
81Driving that is culpably negligent within the meaning of s 318(2)(b), or dangerous within the meaning of s 319(1), is in each case conduct that warrants punishment under the criminal law. Both sections create serious criminal offences for which substantial terms of imprisonment may be imposed. To direct the jury that, to convict an accused of culpable driving causing death, the driving must have been such as to warrant criminal punishment, and not to give a like direction with respect to dangerous driving, may suggest that the latter offence encompasses conduct that does not warrant such punishment. It was with a view to avoiding this misconception that the Court of Appeal in De Montero said that a "meriting criminal punishment" direction should be given with respect to dangerous driving.
82The logic of a direction on the trial of a criminal offence that the accused's conduct must "merit criminal punishment" has been questioned. The elements of manslaughter by criminal negligence stated by the Full Court in Nydam v The Queen include that the accused's conduct must warrant punishment under the criminal law. This appeal does not provide the occasion to consider the continued usefulness of the direction in the case of negligent manslaughter. However, I agree with French CJ, Crennan and Kiefel JJ that there is no warrant for transposing the direction to the trial of a count of dangerous driving causing death.
83Neither party challenged De'Zilwa in their written submissions. However, on the hearing of the appeal, the utility on the trial of a count of culpable driving causing death of the "merit criminal punishment" direction was in issue. The direction does not aid the jury's appreciation of what extent of departure from the standard of care amounts to a "gross degree" since departure from the standard of a lesser degree is also punishable as a serious criminal offence. The direction is likely to mislead in any case in which the alternative verdict is left, given that the difference between the offences does not turn on proof that culpable driving merits criminal punishment. In my opinion, the direction should be confined to the offence of manslaughter by criminal negligence.
(footnotes omitted)
While this is not part of the Court’s ratio decidendi, it is a strong challenge to the requirement in R v De’Zilwa that the formulation set out above (at [9]) and used in R v Antoniazzo be used in directing a jury in trials where the accused is charged with culpable driving by negligence.
This case is not quite on all fours with King v the Queen, but it has distinct and close similarities. There is no offence here charged directly or indirectly (that is, as a statutory alternative) of dangerous driving causing death. There is, however, a statutory alternative provided by s 49 of the ACT Crimes Act, namely an offence under s 6 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), of negligent driving which causes death. In this case, Mr Wolter has pleaded guilty to that charge before the jury.
This starkly raises the issue of confusion adverted to by Bell J, for, if the direction is given in the terms required by R v De’Zilwa, namely that the conduct to constitute culpable driving must be such as to “merit criminal punishment”, then what is the jury to make of that charge to which Mr Wolter has pleaded guilty, so far as criminal punishment is concerned?
Conclusion
Having given the matter anxious and careful thought, though only overnight, I am of the opinion that I should not give a direction in accordance with that required in R v De’Zilwa. The difference in the penalty between that for manslaughter in this jurisdiction and that for culpable driving is relevant, especially as it was a significant factor in the determination in R v De’Zilwa that the direction stated should now be given.
Secondly, the implicit question by the plurality in King v the Queen and the implicit disapproval by Bell J are indications that a single judge should not ignore.
Finally, the confusion that will potentially be occasioned by the specified direction where there has been a plea of guilty to the lesser charge, which also relies on negligence, is also important.
I am hesitant, especially given the decision of this Court in R v Antoniazzo to which I should pay the respect due from judicial comity. I note, however, that King v The Queen was not mentioned in that decision.
I note that in R v Horvath the court, at 539, made the sage and important point that:
... the proper course for the trial judge to adopt is to confine himself [sic] 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 emphasise 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.
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."
I will, accordingly, amend my directions by deleting the passage referred to above (at [3]) and give a direction that is in accordance with the terms of s 29 of the ACT Crimes Act, but with the appropriate elaboration as to the meaning of "gross" as contemplated by the comment I have just quoted.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Leila Tai Date:17 September 2015 |
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