The Queen v Yusoff

Case [2013] NTSC 43

The Queen v Yusoff [2013] NTSC 43

PARTIES:THE QUEEN

v

YUSOFF, Rolena

TITLE OF COURT:  FULL COURT OF THE

SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:21243700

DELIVERED:  1 August 2013

HEARING DATES:  30 July 2013

JUDGMENT OF:  SOUTHWOOD ACJ, BLOKLAND AND BARR JJ

CATCHWORDS:

CRIMINAL LAW AND PROCEDURE – Reference to the Full Court of questions of law – court accepted the reference – is an offence against s 174FA of the Criminal Code (NT) limited to circumstances where the Crown can prove that the person subject to the incident was not killed immediately as a consequence of the incident – does the giving of any reasonable assistance to a person subject to an incident as provided by s 174FA(1)(b)(ii) require that it is possible for some assistance to be provided by the driver involved in such an incident – does the definition of ‘person’ as defined in s 1B of the Criminal Code (NT) apply to s 174FA of the Criminal Code – question 1 answered in the negative – question 2 answered in the affirmative but the answer is only relevant to a breach of s 175FA(1)(b)(ii) not a failure to stop – question 3 answered in the negative – Criminal Code (NT) s 1B and s 174FA

STATUTORY INTERPRETATION – Criminal Code (NT) s 1B and s 174FA – hit and run – duty to stop and give assistance – person killed immediately on impact with vehicle – duty to stop – duty to stop requires the driver to bring the vehicle to a halt, get out of the vehicle and assess the situation – no duty to give assistance to a person who is killed immediately on impact with a vehicle – impossible to give assistance – meaning of ‘person’ in s 1B Criminal Code (NT) not applicable to s 174FA(1)(b)(ii)

Criminal Code (NT) s 1B, s 174FA

R v Adams (1935) 53 CLR 563
Alcan (NT) Alumina Pty Ltd v Commissioner of Revenue (Northern Territory) (2009) 239 CLR 27
Beckwith v The Queen (1976) 13 ALR 333
Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg [1975] AC 591
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Donaldson v Broomby (1982) 40 ALR 525
Re Fish; Ingham v Raynor [1894] 2 Ch 83
McLaughlin v Fosbery & Ors (1904) 1 CLR 546
Saed v Minister for Immigration and Citizenship (2010) 84 ALJR 507
Scott v Cawsey (1907) 5 CLR 132
Smith v Corrective Services Commission of New South Wales (1980) 33 ALR 25

D Brown, Traffic Offences and Accidents 4th Ed (2006 LexisNexis Butterworths Australia)
Pearce and Geddes, Statutory Interpretation in Australia 7th Ed (2011 LexisNexis Butterworths)
Spigelman CJ, “The poet’s rich resource: issues in statutory interpretation”, (2001) 21 Aust Bar Rev 224

REPRESENTATION:

Counsel:

Applicant:D Morters

Respondent:  M Burrows

Solicitors:

Applicant:Office of the Director of Public Prosecutions

Respondent:  Maleys

Judgment category classification:   B

Judgment ID Number:…

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The Queen v Yusoff [2013] NTSC 43
Case
[2013] NTSC 43
Decision Date

CaseChat Overview and Summary

The Queen v Yusoff involved a charge against Rolena Yusoff for failing to stop her vehicle and provide assistance after it was involved in an incident that resulted in the death of Rikki Colosimo. The case was heard in the Supreme Court of the Northern Territory, where the accused challenged the indictment on the grounds that the deceased was killed immediately upon impact with the accused’s vehicle. Blokland J referred several questions to the Full Court for consideration, focusing on the interpretation of s 174FA of the Criminal Code (NT) and the duty to stop and give assistance in such incidents.

The legal issues addressed by the Full Court revolved around the scope of the offence under s 174FA, specifically whether the offence is limited to cases where the victim was not killed immediately. Another issue was whether the duty to provide assistance requires the possibility of actually providing assistance to the victim. Lastly, the court had to determine if the definition of 'person' under s 1B of the Criminal Code (NT) applies to s 174FA(1)(b)(ii). The court's reasoning involved a detailed analysis of the statutory language and legislative intent behind s 174FA. The court concluded that the offence under s 174FA does not require proof that the victim was not killed immediately, but the duty to provide assistance does require the possibility of providing such assistance. Furthermore, the definition of 'person' under s 1B was not applicable to the duty to provide assistance in s 174FA(1)(b)(ii).

The Full Court answered the referred questions as follows: first, the offence under s 174FA is not limited to circumstances where the victim was not killed immediately. Second, the duty to provide reasonable assistance requires that it is possible for some assistance to be provided, but this only pertains to a breach of s 174FA(1)(b)(ii), not the failure to stop. Lastly, the definition of 'person' under s 1B of the Criminal Code (NT) does not apply to s 174FA(1)(b)(ii). Consequently, the indictment against Yusoff was not quashed as a matter of law, and the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

On 25 July 2013 Blokland J referred the following questions for consideration by the Full Court.1.Is an offence against s 174FA of the Criminal Code (NT) limited to circumstances where the Crown can prove that the person subject to the incident was not killed immediately as a consequence of the incident?2.Does the giving of any reasonable assistance to a person subject to an incident as provided by s 174FA(1)(b)(ii) require that it is possible for some assistance to be provided by a driver involved in such an incident?3.Does the definition of a ‘person’ as defined by s 1B of the Criminal Code (NT) apply to s 174FA(1)(b)(ii) of the Criminal Code?Background On 18 June 2013 an indictment was filed in the Supreme Court charging Rolena Yusoff (the accused) with one count against s 174FA of the Criminal Code (NT). The count pleads:On 18 November 2012 at Humpty Doo in the Northern Territory of Australia, [Rolena Yusoff], being the driver of a motor vehicle which was involved in an incident that resulted in the death of Rikki Colosimo, failed to stop the vehicle at the scene of the incident and failed to give any assistance to Rikki Colosimo that was reasonable in the circumstances. The accused applied to Blokland J under s 339 of the Criminal Code (NT) to quash the indictment on grounds that the indictment is defective as the crime charged cannot be made out as a matter of law because the deceased was killed immediately on impact with the accused’s motor vehicle. In the alternative, the accused demurred under s 349 of the Criminal Code (NT). It is an agreed fact that the deceased referred to in the indictment was killed immediately on impact with the accused’s vehicle. As the applications in the Supreme Court raised important questions about the interpretation of s 174FA of the Criminal Code (NT), Blokland J ruled that in the interests of justice the above questions should be referred to the Full Court.Section 174FA of the Criminal Code Section 174FA of the Criminal Code (NT) states:(1) The driver of a vehicle is guilty of a crime if:(a)the vehicle is involved in an incident that results in the death of, or serious harm to, a person; and(b) the driver fails to:(i) stop the vehicle at the scene of the incident; and(ii)give any assistance to the person that is reasonable in the circumstances.Fault elements:The driver knows, or is reckless as to whether or not:(a) the vehicle is involved in an incident; and(b)the incident results in the death of, or serious harm to, a person.Maximum penalty:(a)Imprisonment for 10 years if the incident results in the death of a person.(b)Imprisonment for 7 years if the incident results in serious harm of a person.(2)In this section:driver, of a vehicle, includes a person who controls the vehicle (for example, the rider of a motorcycle).vehicle means any form of transport that can be used on a road or track (for example, a car, trailer, bicycle, horse or horse drawn carriage). Section 174FA was enacted by s 5 of the Criminal Code Amendment (Hit and Run and Other Endangerment Offences) Act 2008 and commenced on 19 November 2008. In the second reading speech the Attorney-General, Dr Burns, stated:The purpose of this bill is to amend the Criminal Code (NT) in two key areas. First, it creates a specific hit and run offence providing substantial penalties for drivers who leave the scene of an accident in which a person has been killed or seriously injured; and second [….][….] Recent incidents in the Northern Territory and other states have highlighted the desirability of enacting a specific offence targeting drivers who leave the scene of an accident where someone has been killed or seriously injured and do not render assistance. Failing to stop in these circumstances is cowardly and falls short of what a humane society requires of its citizens [emphasis added].The bill creates section 174FA of the Criminal Code (NT) which makes it an offence for a driver of a vehicle that is involved in an incident causing death or serious harm to another person to fail to stop and give assistance in circumstances in which he or she knows or is reckless as to whether or not the vehicle has been involved in an incident and knows or is reckless as to whether or not the person has been killed or seriously harmed. Where the incident results in death, the maximum penalty for failure to stop and render assistance is 10 years imprisonment. Where the incident results in serious harm, the maximum penalty is seven years imprisonment.The penalties mirror those for dangerous driving causing death and dangerous driving causing serious harm. This is deliberate. It not only reflects that the abandonment of a person who is dead, dying or seriously injured deserves serious punishment regardless of who is to blame for the accident, but also it importantly removes the incentive for those persons who think they might be charged with dangerous driving causing death or dangerous driving causing serious harm to escape from the scene. Specifically, it provides a strong deterrent against people who may choose to flee an accident scene to avoid a breath test.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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