Russell-Smith v Illich
[2000] WASCA 247
•5 SEPTEMBER 2000
RUSSELL-SMITH -v- ILLICH [2000] WASCA 247
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 247 | |
| Case No: | SJA:1090/2000 | 23 AUGUST 2000 | |
| Coram: | SCOTT J | 5/09/00 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | CHARLES RUSSELL-SMITH PAUL ILLICH |
Catchwords: | Criminal law and procedure Doctor speeding to hospital in response to emergency call -Criminal Code, s 25 Extraordinary emergencies Reversed onus of proof Onus on prosecution to exclude defence under s 25 Criminal Code Matter to be re-heard according to law |
Legislation: | Criminal Code, s 25 |
Case References: | Larner v Dorrington (1993) 19 MVR 75 McHenry v Stewart, unreported; FCt SCt of WA; Library No 1918; 14 December 1976 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53 Dudley v Ballantyne (1988) 28 MVR 209 R v Martin [1989] 1 All ER 652 Reg v Conway [1989] 1 QBD 290 Warren v Combes (1979) 142 CLR 531 Watt v Thomas [1947] AC 484 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
PAUL ILLICH
Respondent
Catchwords:
Criminal law and procedure - Doctor speeding to hospital in response to emergency call -Criminal Code, s 25 - Extraordinary emergencies - Reversed onus of proof - Onus on prosecution to exclude defence under s 25 Criminal Code - Matter to be re-heard according to law
Legislation:
Criminal Code, s 25
Result:
Appeal allowed
(Page 2)
Representation:
Counsel:
Appellant : Mr A C Thorpe
Respondent : Mr A J Sefton
Solicitors:
Appellant : A C Thorpe
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Larner v Dorrington (1993) 19 MVR 75
McHenry v Stewart, unreported; FCt SCt of WA; Library No 1918; 14 December 1976
Case(s) also cited:
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53
Dudley v Ballantyne (1988) 28 MVR 209
R v Martin [1989] 1 All ER 652
Reg v Conway [1989] 1 QBD 290
Warren v Combes (1979) 142 CLR 531
Watt v Thomas [1947] AC 484
(Page 3)
1 SCOTT J: On 10 July 1999 at 9:47 pm the appellant drove his motor vehicle on Thomas Road, Orelia, at a speed 41 kph in excess of the speed limit. I am told, although it was not in evidence, that the appellant's speed was detected by a Multinova camera.
2 The appellant at the time was a medical practitioner who, amongst other duties, provided anaesthetic services to the Rockingham/Kwinana Hospital. The evidence indicates that the appellant was on emergency call on the night in question and that at or about the time of the alleged driving he received a phone call from a midwife at the hospital who asked him to return so that he could administer an emergency epidural injection to a patient who was in distress. The evidence indicates that when he received the phone call the appellant could detect that the midwife was in a state of distress and he could hear the patient screaming in the background during the course of the phone call.
3 The appellant, who was on his way home, turned his vehicle around and proceeded back to the hospital. He said in evidence that there was minimal other traffic and he was on a dual carriageway which he knew well.
4 In cross-examination, the appellant indicated that there was a risk to the life of the baby in the circumstances.
5 The matter proceeded in a quite extraordinary manner in that the appellant, at the Court of Petty Sessions hearing indicated to the learned Magistrate that he did not dispute any of the prosecution facts. The learned Magistrate clarified with the appellant that he admitted being the driver of the vehicle concerned and that he admitted the area and the speed at which it was said that he was travelling.
6 The transcript also illustrates that there had been some communication between the appellant and the police as to the matters that the appellant was intending to raise prior to the trial. It appears from the transcript that the prosecutor had obtained copies of some documents from the hospital prior to the hearing.
7 As I have already indicated, the prosecution called no evidence because the appellant did not dispute the primary facts which the prosecution sought to establish. The trial proceeded by way of the appellant giving evidence and being cross-examined. That was the only evidence called.
8 In dealing with the matter, her Worship said in her reasons:
(Page 4)
- "Now clearly Dr Russell … (on tape) … then would be depending on the fact that the ordinary course and with the qualification that he has and also possessing the same power of self-control could not reasonably be expected to act otherwise. Now one can accept that he was responding to a call in relation to a patient who he could hear was in distress on the telephone. But there has been nothing put before me that would require him to speed to that location and in particular the amount of speed of 41 kilometres per hour.
I find he has not established to the court's satisfaction that section 25 of the Criminal Code applies, that it was an extraordinary emergency which required him so to speed. And I find the charge proven to the required standard."
9 Section 25 of the Criminal Code upon which the appellant relied provides:
"Extraordinary emergencies
Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise."
10 In this case it is not necessary to explore the interesting question as to whether s 25 provided the appellant with a defence in all the circumstances. That issue will need to be determined elsewhere. The reason why I have reached that conclusion is because in my opinion, the learned Magistrate in this case reversed the onus of proof. It was not for the appellant to provide an explanation or to establish anything in his defence. Once an issue had been raised under s 25 of the Criminal Code, the onus was on the prosecution to prove beyond reasonable doubt that the appellant was not acting in circumstances that constituted a sudden or extraordinary emergency within the meaning of s 25 of the Criminal Code. It is also not appropriate to comment on whether that should have been done by way of the prosecution adducing evidence to exclude such a defence or whether, in this case, that should have been done by way of rebuttal evidence. That issue involves considerations which are not apparent from the transcript presently before this Court.
(Page 5)
11 The onus was clearly upon the prosecution to exclude the operation of s 25 of the Criminal Code: see McHenry v Stewart, unreported; FCt SCt of WA; Library No 1918; 14 December 1976 per Jackson CJ at 3; Larner v Dorrington (1993) 19 MVR 75 per Walsh J at 80.
12 It is not necessary to repeat all of the grounds of appeal but ground 1.5 of the amended grounds of appeal is:
"1.5 The learned Magistrate erred in law in placing upon the Applicant the burden of proving that he was acting in circumstances of sudden or extraordinary emergency."
13 I am of the opinion that the appellant has succeeded on ground 1.5 and unfortunate though it is, the appeal should be allowed and the conviction quashed. The matter should be remitted for hearing and determination before another Magistrate, to be dealt with according to law and in accordance with these reasons. It will be for the prosecuting authorities to determine whether in all the circumstances a further trial is warranted.
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