Schwark v Police - [2011] SASC 212

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SCHWARK v POLICE
[2011] SASC 212
Judgment of The Honourable Justice Gray
9 December 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - GENERALLY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - VOLUNTARINESS - GENERALLY
Defendant charged with causing harm by dangerous driving contrary to section 19A(3) of the Criminal Law Consolidation Act 1935 (SA) - where the objective elements of the offence were admitted - where the Magistrate found that the defendant was not mentally competent to commit the offence - defendant appealed against the Magistrate's decision to disqualify him from holding or obtaining a driver's licence for 12 months - appeal by the defendant abandoned before the appeal hearing - the police cross-appealed, challenging the finding that the defendant was not guilty by mental incompetence.
Held: Cross-appeal by police allowed - the defendant's driving was a willed act - viewed objectively, the defendant's driving was dangerous and caused serious injury to his passenger - the charge of causing harm by dangerous driving was proved - the defendant was convicted of the offence charged - matter remitted to the trial Magistrate - orders of the Magistrate set aside except for the order for disqualification from holding or obtaining a driver's licence.
Criminal Law Consolidation Act 1935 (SA) s 19A(3), s 269C and s 269O(1), referred to.
R v Cain [2011] SASCFC 135; Kroon v The Queen (1991) 55 SASR 476; Jiminez v The Queen (1992) 173 CLR 572; Police v Barber (2010) 108 SASR 520; R v Coventry (1938) 59 CLR 633, considered.

SCHWARK v POLICE
[2011] SASC 212
Magistrates Appeal
GRAY J:

This is an appeal from the dismissal of a complaint by a Magistrate on the ground of mental incompetence.
The defendant, Alex James Schwark, was charged with driving a motor vehicle in a culpably negligent manner, recklessly or at a speed or in a manner dangerous to the public and by that culpable negligence, recklessness or other conduct caused bodily harm contrary to section 19A(3) of the Criminal Law Consolidation Act 1935 (SA). This offence was alleged to have occurred on 8 May 2010 at Port Broughton.
The objective elements of the offence were admitted. However, it was the defence case that the defendant was not mentally competent to commit the offence. The Magistrate found that the defendant was not mentally competent and dismissed the complaint. The Magistrate concluded that the defendant was liable to supervision and ordered his immediate release on licence, fixing a limiting term of 12 months. It is apparent that the Magistrate acted in making the above orders under section 269O(1)(b)(ii) of the Criminal Law Consolidation Act.
The Magistrate disqualified the defendant from holding or obtaining a driver’s licence for a period of 12 months commencing at 12:01 am on 1 April 2011.
An appeal by the defendant was lodged complaining about the order disqualifying the defendant from holding or obtaining a driver’s licence. When the matter was listed for hearing, the Court was advised that the appeal was abandoned.[1] It remained for the Court to deal with the cross-appeal lodged by the police.
[1] To date, no discontinuance has been filed.
The notice of appeal lodged by the police challenged the Magistrate’s finding that the defendant was not guilty by reason of mental incompetence of causing harm by dangerous driving. The police sought an order setting aside the finding of not guilty and in lieu sought an order convicting the defendant of the offence of causing harm by dangerous driving. It was further contended that in the circumstances, the matter should be remitted to the Magistrate who heard the trial of the proceeding for further consideration as to penalty. It was said that the order of disqualification should remain as it was inevitable that disqualification would follow conviction.
The circumstances of the defendant’s driving and the consequences of that driving were not in dispute. On 8 May 2010, the defendant was driving a V8 Holden motor vehicle when he began to show off to his passenger by revving the engine and causing the vehicle to drift sideways on several occasions. On the last occasion of drifting sideways, the defendant lost control of the vehicle and came into collision with a tree in the median strip of Bay Street, Port Broughton. His passenger was trapped in the car until cut free. She sustained injuries including fractures to her left upper arm and collar bone.
According to the police apprehension report, the passenger in the defendant’s vehicle had only met the defendant earlier that day. The meeting occurred at a property where the passenger had an argument with another person and the defendant had offered to take her for a drive to cool down. She accepted this offer.
When interviewed by the police, the defendant said that he had been driving and had induced wheel spin on several corners prior to his collision with the tree. He gave an account of driving left around a corner onto a main street of Port Broughton, putting his foot down on the accelerator and then moving sideways and straight into the tree. He said that he had been driving in this manner because it was something to do. He further stated that it was not something that he would normally do when driving.
It is established that driving a motor vehicle in a manner dangerous does not require knowledge or belief on the part of a defendant that the driving is dangerous. In R v Coventry, in refusing permission to appeal, Latham CJ, Rich, Dixon and McTiernan JJ observed:[2]
[2]    R v Coventry (1938) 59 CLR 633, 638.
No doubt the language of the section does not exclude a defence of mistake of fact on reasonable grounds or of involuntariness (for example, by interference by another person with the driving of the car), and perhaps there may be other exceptional excuses, based on special facts to which a state of mind may not be immaterial. But, speaking generally, the expression “driving a speed, or in a manner, which is dangerous to the public” describes the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence. It is not desirable to attempt to make an exhaustive catalogue of possible defences, and what we have said is sufficient to deal with the present case.
The relevant willed act is that of driving. The assessment of the manner of driving and whether it is dangerous is a matter of objective assessment. In Cain,[3] the Court of Criminal Appeal recently had occasion to consider the elements of the offence of causing death by dangerous driving contrary to section 19A(1) of the Criminal Law Consolidation Act. There, with the concurrence of David and Blue JJ, I observed:[4]
[3]    R v Cain [2011] SASCFC 135; see also, Jiminez v The Queen (1992) 173 CLR 572; Police v Barber (2010) 108 SASR 520, [28]-[32].
[4]    R v Cain [2011] SASCFC 135, [18]-[20].
The relevant willed act for the purposes of the establishment of the offence is that the driving was a voluntary and willed act. The question of whether the driving is in the circumstances dangerous driving is a question to be determined objectively having regard to all of the facts. It is not necessary for the prosecution to prove that the bad driving was willed. The submission of the Director as emphasised above is correct.
In my view, the Judge misdirected himself when he posed the question as to whether the bad driving was willed. As King CJ observed in Kroon:[5]
It is well established that the question whether a vehicle is driven in a manner dangerous to the public for the purpose of the offences created by s 19a of the Criminal Law Consolidation Act 1935 must be answered by reference to an objective standard and irrespective of whether the accused intended to drive dangerously or appreciated that he was doing so: see R v Coventry (1938) 59 CLR 633 at 637-638, 639; McBride v The Queen (1966) 115 CLR 44 at 49-50, 55; Giorgianni v The Queen (1985) 156 CLR 473 at 479, 490, 499; Cornish v The Queen (1988) 48 SASR 520. The character of the driving is tested not by reference to whether the danger to the public involved in the driving was appreciated by the accused but to whether he ought to have appreciated the danger; or, to put it another way, whether a reasonable person in the situation of the accused would have appreciated the danger: see R v Mayne (1975) 11 SASR 583, per Bray CJ at 585; R v Duncan (1953) 11 SASR 592 at 594.
Although the standard to be applied is objective in the sense defined above, it is applicable only to a voluntary act of driving. It is clear on the authorities, and on principle, that to constitute the offence, there must be a voluntary act of driving: see Coventry (supra) (at 638); R v Thompson (1975) 11 SASR 217 at 220, per Bray CJ; Giorgianni (supra) (at 499). Where the driving or apparent driving is deprived of its voluntary character by, for example, automatism or unconsciousness, the offence is not committed: see Hill v Baxter [1958] 1 QB 277; Cooper v McKenna; Ex parte Cooper [1960] Qd R 406 at 415-419; R v Carter [1959] VR 105 at 112-113.
King CJ further observed:[6]
… At common law criminal liability attaches only to acts or omissions which are voluntary, that is to say, the result of an exercise of the will of the accused person. There is a presumption that the legislature, when creating a statutory offence, does not intend to exclude such a basic principle of the criminal law and that presumption can only be rebutted by express words or the clearest of implications. The language of the sections creating the offences of causing death or bodily injury by dangerous driving (Criminal Law Consolidation Act, s 19a) and of driving without due care (Road Traffic Act 1961, s 45) does not exclude the principle requiring a voluntary act or omission as the condition of criminal liability, and there does not appear to be any basis for such an implication. On the contrary, the indictable crimes of causing death or bodily injury by dangerous driving clearly imply some fault on the part of the driver: see R v Gosney [1971] 2 QB 674 at 679. Driving without due care, although a mere traffic offence, has penal consequences and ought also on principle apply only to a voluntary act of driving. The principles laid down in Mayne (supra) and the Duncan (supra) summing up make clear that both the indictable crimes and the traffic offence involve fault in the sense of a departure from an objective standard of driving. Fault necessarily implies that the act constituting the fault is a voluntary act.
[Emphasis in original.]
[5]    Kroon v The Queen (1991) 55 SASR 476, 477-478.
[6]    Kroon v The Queen (1991) 55 SASR 476, 479.
It was the submission of the police on the appeal that it was not in dispute that the defendant’s act of driving was a willed act. It was said that there was nothing in the expert psychiatric evidence to negate this proposition. The manner of driving is to be assessed objectively and that on any view, the manner of driving as described above was dangerous. It was not in issue that the manner of driving caused the injuries suffered by the passenger. In these circumstances, it was said that clear error had been demonstrated and that the finding of not guilty should be set aside. Counsel appearing for the defendant did not suggest that the decision of King CJ in Kroon, as applied in Cain, was an incorrect statement of the law. It was further accepted that an analysis of the psychiatric report, tendered at the trial suggested that the psychiatrist had not understood the nature of this particular offence. In these circumstances, it was conceded that the cross-appeal should be allowed.
I consider that the appeal raises issues of public importance and that I should provide considered reasons for my decision and consequential orders.
Section 269C of the Criminal Law Consolidation Act provides:
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
(a)     does not know the nature and quality of the conduct; or
(b)     does not know that the conduct is wrong; or
(c)     is unable to control the conduct.
Relevantly, the conduct alleged to give rise to the offence was the act of driving. The question more particularly is whether the defendant knew the nature and quality of his act in driving and that he was able to control the act of driving. The conduct of dangerous driving or bad driving is to be assessed objectively.
The Magistrate, in reaching his decision, appears to have relied on the opinion of a psychiatrist, Michael Schirripa. In his report, Dr Schirripa set out his understanding of section 269A of the Criminal Law Consolidation Act as follows:
It is my understanding that Section 269A of the Criminal Law Consolidation Act defines a “mental impairment” as either a “mental illness” or an “intellectual disability” or a “disability or impairment of the mind resulting from senility”.
Dr Schirripa then expressed his opinion in the following terms:
In my opinion, Mr Schwark was suffering from a “mental impairment” at the time of alleged offences. More specifically he was suffering from a “mental illness”, that being a manic episode in the context of bipolar disorder.
It is my understanding that Section 269C of the Criminal Law Consolidation Act states that:
“a person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment-
(a)    does not know the nature and quality of the conduct; or
(b)   does not know that the conduct is wrong; or
(c)    is unable to control the conduct.”
[Emphasis in original.]
Following further discussion, Dr Schirripa concluded:
… on the balance of probabilities Mr Schwark was not mentally competent to commit the offences. In my opinion he therefore has a mental impairment defence available to him.
[Emphasis in original.]
Four complaints were made about Dr Schirripa’s opinion. It was said that Dr Schirripa appeared to have thought that whether or not the defendant was aware of the wrongfulness of his conduct was a relevant consideration. Attention was drawn to the following paragraph in his report:
There is also some evidence that he did not know the wrongfulness of the conduct in relation to the alleged offences. His manic state of mind led him to hold certain erroneous and grandiose beliefs that he was justified in behaving in this way. For example, his statement to police that it was his father’s fault that this had occurred.
In my view, this expression of opinion in the report would suggest that Dr Schirripa had not understood for the purposes of his report that the relevant willed act in the charged offence was driving, not the wrongfulness of the manner of driving. Counsel for the police pointed to a further statement in Dr Schirripa’s report, where he wrote:
As described above, at the time of the alleged offences, Mr Schwark was suffering an episode of mania. This was also confirmed by the admission to hospital for psychiatric treatment immediately following the alleged offences. His mood was clearly irritable, angry and hostile. He was also behaving in an extremely impulsive and disinhibited manner. His judgment was grossly impaired. I would therefore argue that due to his illness he was unable to adequately control his behaviour in relation to the alleged offences.
Earlier in the report in recounting the history provided by the defendant, Dr Schirripa noted that the defendant said that he could remember taking his passenger for a drive in his motor vehicle, but could not recall what “drove him to drive in such an erratic and dangerous manner”.
In my view, there is substance to this complaint. It appears that the defendant accepted an intent to drive and that accordingly his driving was a willed act. He drove for a purpose, namely to take his passenger for a drive. The question of his willed acts thereafter and in particular as to his erratic and dangerous driving was to be assessed objectively. Dr Schirripa appears to have misunderstood the elements of the offence.
Dr Schirripa in his report expressed the conclusion that the defendant could not “adequately control his behaviour”. However, a review of the report does not disclose the basis for this conclusion. To put it another way, there was no medical or scientific basis proffered to support the conclusion. In any event, on my reading of the report, it was not suggested that this opinion related to the mere act of driving, rather it related to the erratic and dangerous manner of driving. I consider that this criticism of the police to be well based.
Finally, it was complained that Dr Schirripa, in expressing the opinion that the defendant lacked the mental competence to commit the offence charged, was purporting to determine the ultimate issue that the Magistrate had to decide. It was said that it was not the role of the expert witness to declare that the defendant had a mental impairment defence available to him. That was the very issue for the Court to decide.
I do not consider that it is impermissible for an expert witness to express an opinion on the ultimate issue before the Court. However, when an expert does so, care must be taken in how such an opinion is to be treated. The Magistrate must reach his own conclusion having considered all of the evidence. He cannot simply adopt the opinion of an expert without independent consideration of the underlying evidence. It is for this reason that an expert is expected to disclose the underlying scientific basis for an opinion so that the opinion can be weighed and assessed by the Magistrate. The Magistrate provided short reasons for his conclusion as part of his sentencing remarks. He observed:
I have to work on the basis that at the time that you were driving in that manner you were suffering from the effects of this illness that you have. Fortunately for you and more fortunately for the victim, she was not injured to the extent that her life was threatened but nonetheless she was injured. She required hospitalisation. It is a serious offence.
I have read the reports put forward by the psychiatrist in relation to your ongoing treatment. The exercise for me today really is to assess the penalty that I believe to be appropriate and to set a limiting term for the licence that you will be subject to as a result of admitting the objective elements of the offence.
These short remarks suggest that the Magistrate may have simply adopted the conclusion of the psychiatrist and had overlooked the need to consider the elements of the offence and to assess whether the act of driving was a willed act.
For these reasons, I consider that the Magistrate’s findings were flawed. I consider the evidence to be overwhelming that the defendant’s driving was a willed act and that viewed objectively the manner of driving was dangerous. It is clear that the defendant’s driving caused serious injury to his passenger. In these circumstances, the charge of causing harm by dangerous driving was proved.
I note the undertaking of counsel for the police that the Registrar of Motor Vehicles will be advised of the outcome of this proceeding and will be provided with a copy of my reasons and with a copy of the psychiatric reports tendered before the Magistrate both on the trial and with respect to the other orders made.

Having regard to the foregoing, I dismiss the defendant’s appeal. I allow the cross-appeal by the police. I set aside the order of acquittal, the order fixing a limiting term and the order releasing the defendant on licence. I convict the defendant of the offence of causing harm by dangerous driving. I remit the matter for further consideration as to penalty by the trial Magistrate. I do not set aside the order for disqualification. The defendant remains disqualified from holding or obtaining a driver’s licence as from 12:01 am on 1 April 2011.