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

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tasmania v Wahl

Details

AGLC: Tasmania v Wahl [2011] TASSC 40
Case: [2011] TASSC 40
Decision Date: 27 July 2011

CaseChat Overview and Summary

The case of Tasmania v Wahl involved the accused, Wahl, who was charged with dangerous driving causing death or bodily harm under the Tasmanian Road Traffic Act 1974. The incident occurred when Wahl lost control of his vehicle, resulting in the death of a pedestrian. The matter was heard in the Supreme Court of Tasmania. The primary issue before the court was whether the trial judge correctly directed the jury on the test of liability for dangerous driving, specifically regarding the concept of an honest and reasonable mistake. The defence argued that the trial judge failed to adequately instruct the jury on this aspect, potentially leading to an erroneous conviction.

The court examined the legal principles governing the test of liability for dangerous driving, particularly the requirement for an honest and reasonable mistake of fact. The court noted that the trial judge had provided a general direction to the jury on the concept of an honest and reasonable mistake but did not explicitly address the application of this principle to the facts of the case. The court held that the trial judge's direction was insufficient as it did not specifically guide the jury on how to assess the accused's state of mind in relation to the mistake of fact. This omission could have led the jury to convict the accused without properly considering whether the mistake was honest and reasonable in the circumstances.

The Supreme Court of Tasmania quashed Wahl's conviction and ordered a new trial. The court found that the trial judge's failure to provide a clear and specific direction on the test of liability for dangerous driving, particularly concerning the honest and reasonable mistake of fact, constituted a significant error that could have affected the outcome of the trial. The court emphasised the importance of a proper legal direction to ensure that the jury understood the applicable legal principles and could apply them correctly to the facts of the case. Consequently, the conviction was quashed, and a new trial was ordered to allow for a proper assessment of the evidence and application of the law.

Orders