Tasmania v Wahl

[2011] TASSC 40

[2011] TASSC 40

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Tasmania v Wahl [2011] TASSC 40

PARTIES:  STATE OF TASMANIA
  v
  WAHL, Jade Victoriarnah

FILE NO/S:  85/2010
DELIVERED ON:  27 July 2011
DELIVERED AT:  Hobart
HEARING DATE:  25 - 29 July 2011
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Particular offences – Driving offences – Culpable or dangerous driving causing death or bodily harm – Test of liability – Generally – Honest and reasonable mistake – Direction to jury.

Criminal Code (Tas), s167B.
R v Coventry (1938) 59 CLR 633; Jiminez v R (1992) 173 CLR 572, followed.
Aust Dig Criminal Law [2497]

REPRESENTATION:

Counsel:
           Crown:  A R Jacobs
           Accused:  G Barns, T Kovacic
Solicitors:
           Crown:  Director of Public Prosecutions
           Accused:  Milton & Meyer

Judgment Number:  [2011] TASSC 40
Number of paragraphs:  6

Serial No 40/2011
File No 85/2010

STATE OF TASMANIA
v JADE VICTORIARNAH WAHL

RULING DURING TRIAL  BLOW J

(Edited version of oral ruling)  27 July 2011

1. The accused has been charged, amongst other things, with a count of causing grievous bodily harm by dangerous driving, contrary to the Criminal Code, s167B. A question has arisen as to whether I should give the jury a direction to the effect that an honest and reasonable mistaken belief could amount to a defence to that charge. In my view it can, subject to the accused discharging the evidentiary burden. In my view the onus is on the Crown to disprove an honest and reasonable mistaken belief to the effect that there was not a pedestrian in front of her car.

1. There is evidence that on the night in question she was driving people away from the scene of a home invasion when she ran over a woman who lived in the house that had been invaded, causing terrible injuries.  There is evidence that, when interviewed by police officers, she told them that the windscreen of her car had been smashed; that she was unable to see in front of the car properly because the windscreen had been smashed; that she was being menaced by somebody outside the vehicle who had hold of her by the hair; that her son was in the front passenger seat, and she spoke to him about the possibility of somebody being in front of the vehicle; that her son told her that there was nobody in front of the vehicle; and that, in reliance on that statement, she drove forward with the apparent result that the lady in question was run over.

1. Mr Barns, for the accused, referred me to a decision of the Queensland Court of Appeal in R v Wilson [2009] 1 Qd R 476 in which it was held that a defence of honest and reasonable mistaken belief was available to a similar charge in Queensland [dangerous operation of a motor vehicle contrary to the Criminal Code (Qld), s328A]. However the provisions of the Queensland Criminal Code and the Tasmanian Criminal Code as to honest and reasonable mistaken belief are different. Under the Queensland Criminal Code, s24, there is a prima facie position that a person who does an act under an honest and reasonable but mistaken belief as to the existence of a state of things is not criminally responsible for that act to any greater extent than if the real state of things had been such as that person believed to exist.  That rule may be excluded by the express or implied provisions of the law.  Whereas in Tasmania, under the Criminal Code, s14, the law is as follows:

"Whether criminal responsibility is entailed by an act or omission done or made under an honest and reasonable, but mistaken, belief in the existence of any state of facts the existence of which would excuse such act or omission, is a question of law, to be determined on the construction of the statute constituting the offence."

1. There is a similar decision of the Western Australian Court of Criminal Appeal in Kitson v R (1987) 5 MVR 228. But the Western Australian Criminal Code, s24, is in practically identical terms to the Queensland section.

1. In R v Coventry (1938) 59 CLR 633, the High Court held that a similar provision under South Australian legislation prohibiting dangerous driving [driving a motor vehicle in a manner which is dangerous to the public, contrary to the Criminal Law Consolidation Act 1935 (SA), s14] resulted in an objective test as to whether the accused person's driving was dangerous, and in the joint judgment of Latham CJ and Dixon, Rich and McTiernan JJ at 638, their Honours made it clear that a defence of honest and reasonable mistaken belief was available. Similarly in Jiminez v R (1992) 173 CLR 572, which concerned New South Wales legislation about dangerous driving [dangerous driving occasioning death through impact with a motor vehicle, contrary to the Crimes Act 1900 (NSW), s52A], Mason CJ and Brennan, Deane, Dawson, Toohey and Gaudron JJ, in their joint judgment at 582 – 583 made it clear that the defence of honest and reasonable mistaken belief was available.

1. I think it follows from Coventry and Jiminez that, although dangerous driving legislation involves an objective test, and although mens rea is not an ingredient of the crime, legislation such s167B and s167A of the Tasmanian Criminal Code should not be interpreted as creating crimes of absolute liability, and that the Crown, when the issue is raised, bears the burden of disproving honest and reasonable mistaken belief.  I propose to direct the jury accordingly.