Williams v The Queen

[2013] HCATrans 247

[2013] HCATrans 247

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S130 of 2013

B e t w e e n -

MICHELLE DOROTHY VERA WILLIAMS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 OCTOBER 2013, AT 10.45 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant with MS G.A. BASHIR.  (instructed by Legal Aid (NSW))

MR J.H. PICKERING, SC:   I appear for the respondent.  (instructed by Director of Public Prosecutions (NSW))

KIEFEL J:   Yes, Mr Game.

MR GAME:   If the Court pleases, first we need an extension of time and I do not think that is ‑ ‑ ‑

KIEFEL J:   Is that opposed?

MR PICKERING:   It is not opposed, your Honour.

MR GAME:   Your Honours, the statutory provision in question requires that in the commission of the offence the vehicle driven be involved in an impact and the driver at the time of the impact be driving the vehicle.  We say that this case raises two questions of significance that warrant a grant of special leave, the first concerning whether or not driving is limited or can be limited to some aspect of control or whether or not it requires the means to control a vehicle, and the second concerns what happens - how can you look at, shall I say, the antecedent driving leading to the deceased’s action if the Crown, as it were, fails on the first question in relation to control in focusing on the actions after the deceased’s own steps in taking hold of the wheel.

Now, there are three judgments which all speak, in our submission, in different ways and we say that Justice Adams’ judgment is correct and I will explain why in a minute, although we have set that out in our submissions.  I am going to take your Honours through aspects of the judgments briefly and then come to the directions. 

First, I will say a word about Justice Basten’s judgment at page 81.  At the top of the page, his Honour sets out how the Crown put its case.  It is important to understand that the Crown case on, shall I say, the earlier driving or the driving just before the point at which the deceased - did not depend on loss of control.  In fact, one of the formulations was the deceased taking hold of the steering wheel for whatever reason.  The second is that in terms of ability to control a vehicle, which appears in (c), that was not put in terms of ability to control a vehicle in terms of having the means to control.  It was put in terms of what I would describe as facility, or aspect of some facility of control.

Now, in respect of what appears in paragraph 10, the applicant’s case was that she was not driving and his Honour correctly points out at paragraph 8 that that was at the point of impact.  That is the critical question.  At paragraph 12, his Honour notes that:

“control and management” has a potential ambiguity –

We say yes, it is and there is a real ambiguity which requires resolution, but we say that the issue is not resolved by Jiminez, which is a quite different sort of a case, not concerned with whether a person is driving but concerned with whether a person’s actions are voluntary at the time of impact and how you look at the anterior driving.

Then over the page, his Honour puts the case in a way – it is at 82 - that was not put, which is that if you can look at the earlier driving then you look at it in terms of causation and you ask whether or not what the passenger did is “a natural and foreseeable consequence”.  But that really does bring in the second special leave point, which is if you can look at the earlier driving, and we are not saying that you cannot but we are saying how, if you can, whether or not focusing – describing it in terms of causation, which is not the Royale idea of causation; it is not totally eschewed in Royale but it is not the Royale idea, and that is not the way it was left in this case.

BELL J:   Mr Game, can I just take this up with you?

MR GAME:   Yes, certainly, your Honour.

BELL J:   At application book 82, paragraph 14, Justice Basten expresses his agreement with Justice Hulme’s view respecting the adequacy of the trial judge’s directions.  If one goes to application book 105, paragraph 68, one sees Justice Hulme’s observations, firstly, that:

It was common ground that [the applicant] was the driver in the period leading up to about one second prior to the impact.

MR GAME:   That is correct.

BELL J:   His Honour says:

It could hardly be suggested that this was not sufficiently contemporaneous.

The applicant was grossly intoxicated at the time and there was really no issue that her driving ability was “very substantially impaired”.  His Honour says the real issue was that raised by the defence, as I understand it.

MR GAME:   Yes, but we say that it is a leading problem that is antecedent to the defence.  We say there is – and in Jiminez the court accepted, in a statutory provision that in the relevant respects is identical, when I talk about the defence, that there had to be a connection between the driving and the impact in a practical sense ‑ ‑ ‑

BELL J:   I think his Honour is identifying the connection temporally.

MR GAME:   Yes, but can I say this.  The contemporaneity works in a totally different way when you have human intervention as opposed to a person falling asleep, because a person falling asleep, the natural consequence of them falling asleep is a loss of control.  The applicant’s case was that she had not lost control.  That was the case that she was putting.  On these directions she loses even if she had not lost control of the vehicle.

KIEFEL J:   But taking up what Justice Bell has said about his Honour’s approach at paragraph 68, his Honour appears to be approaching section 52A(1)(a) and its requirement that the driver be driving “at the time of the impact” as requiring only that the driving be “sufficiently contemporaneous” to impact, not that it be specifically the point ‑ ‑ ‑

MR GAME:   Understood.

KIEFEL J:   Once you accept that, and that we are here talking about only a very short period of time when she was not clearly driving, the question then in a practical sense moves to the defence under subsection (8) and the question whether or not, in the circumstances which arose, she could be seen to have caused ‑ ‑ ‑

MR GAME:   That is correct, but what we say, your Honour, is that contemporaneity works in a different way here.  If I give an example, if a gigantic magnet picked her up and put her off the side of the road, or a storm came – I am not ‑ ‑ ‑

BELL J:   She would succeed in the defence?

MR GAME:   No, your Honour, she would not be driving at the point of impact.  That is the point.

BELL J:   Yes.

MR GAME:   The real point is this is different to Jiminez because you have to get to the driving before you get to the defence.

BELL J:   She is behind the wheel, she is controlling the vehicle.  In the second before impact, someone grabs the wheel.  On Justice Hulme’s analysis, with which as I understand it Justice Basten agrees, that is driving.  One does not cease driving in the circumstance.  It may be, if the jury considered that the intervention by the passenger had nothing to do with the circumstances of the driving, that the defence would succeed.

MR GAME:   Yes, but we say, your Honour, that this is a question entirely antecedent to the defence ‑ ‑ ‑

BELL J:   Yes, I understand that.

MR GAME:   ‑ ‑ ‑ and that itself is a question of importance as to how you deal with that, and it is quite different to a person falling to sleep.  But how long a time is does not matter in terms of driving at the point of impact.  If something has been done which, shall I say, is unexpected and takes you completely away from control of the vehicle, the miniscule – when I say miniscule, the miniscule amount of time is not decisive in respect of that question.  We say that is actually a mistake of principle to look at it in that way and you cannot analogise from Jiminez, so ‑ ‑ ‑

BELL J:   If you cannot analogise from Jiminez, why is it not nonetheless correct to consider the concept of driving for the purpose of 52A as relevantly applying at the point of impact when one has been in control and behind the wheel up to a fraction of a second before the moment of impact?

MR GAME:   Because, your Honour, if you lose the faculty of control, as a matter of statutory construction, at that moment you are not driving.

KIEFEL J:   Well, here, that is interesting because you have a passenger who leans over and pulls on the steering wheel, but what if the driver takes her hands and feet off all of the control pedals?  Is she not driving at this ‑ ‑ ‑

MR GAME:   Absolutely, she is driving.  She has the means of control.

KIEFEL J:   What is the difference?

MR GAME:   The difference is the intervention of the other person and that changes the act because when you get to the impact, the impact is, in a practical sense, that which follows from – I am not saying you cannot have regard to what happened before, but it is a question of how.  The impact is, in a practical sense, the result of the actions of the deceased.  I am not under ‑ ‑ ‑

KIEFEL J:   The question is whether or not the passenger’s actions should be considered under the defence provisions of causation or whether upfront.

MR GAME:   That is correct.

KIEFEL J:   But would it not be more consistent, with an understanding of what criminal liability was intended to encapsulate here, to consider that under the causation provisions.  You have someone who is in charge of a vehicle up until a very short point – a fraction of a second, perhaps before impact, and the question really is whether or not responsibility in a criminal sense ought to be attributed to that person.

MR GAME:   That is true, your Honour.

KIEFEL J:   So defined questions of when you are driving and when you are not do not really address that larger issue, do they?

MR GAME:   No, quite, your Honour, but what has been taken out, if that is correct, is the causation idea with respect to the driving and its connection with the impact, which the Court accepted in Jiminez as being an aspect of the offence.  So it is actually – I will not say “contrary”, but it does not accord with the way in which that was analysed in Jiminez.  I am sure your Honours are familiar with the passage.

I will just take your Honours in a minute to what Justice Adams said, but in the directions that were ultimately left to the jury in this case it was put on the basis that if the deceased grabbed hold of the wheel for whatever reason - that means that even if his conduct was a completely irrational one – I am sorry, he was also very heavily intoxicated – then that would be resolved not in terms of the elements of the offence, but in terms of the defence, if this judgment is correct, and strangely unappealing as the facts of this case are, we say that is a question of general importance that does require resolution.

I am going to have to just say something about the other question, which is really the first one that was raised.  If you are still on that page, your Honours, at page 104, at paragraph 64 – and this is the way the case was left – it is put that if the “means of propulsion” are maintained that is sufficient.  All that is being said is that if you have some aspect of control – nobody is suggesting and the Crown is not suggesting that the applicant actually would have been capable of regaining control.  The question was if she could have put her foot on the brakes with whatever result.

That is quite an important question.  There is no definition of “driver” or “driving” in relevant legislation and we have not been able to find other cases than these, and if you read these cases on it they do not support – we have set it out in the submissions, because each of these cases requires in the unusual circumstances of those cases that the person did have the means of control.  Even though in the Thompson Case, the accelerator was jammed, Justice Vanstone found that there was a means of regaining control.  So that question there at paragraph 64 is itself a question of significance.

If I just come back briefly to what Justice Adams said, and we say that his analysis at paragraph 28 is correct.  That is on page 90.  So dealing with the bit I have just dealt with, that starts about halfway down on 91, he says:

as I have mentioned above, this access needed to be relevant in the sense that she had an opportunity to apply the brake in a way that would have affected the driving, in short, gave her control of the vehicle.

That is not how the case was left.

BELL J:   The majority considered the case had been left on a basis unduly favourable to the applicant and I think some of this detailed analysis in the reasons of Justice Adams needs to be understood against that view.

MR GAME:   I understand that, your Honour, but that unduly favourable view pulls causation out of the thing altogether and simply says was she driving at a time sufficiently contemporaneous, full stop, over to the defence.  We say that analysis does not accord with a proper construction of the provision, nor how it was construed in Jiminez itself and has been applied in other cases.

At the top of the page on 91, that is his Honour’s analysis of the, shall I say, “losing control” situation.  We accept that if she – I might say the definition of “impact” is extended by the provision to pick up these sorts of things, like if you go off the side of the road and so forth, that is treated as part of the impact.  The legislature has actually thought about what it means, but if you go to the top of 91, what his Honour is saying, that if she had lost control and she is guilty, if she is still driving, if the response of the victim was a response to that, that is an analysis that we would adopt.  That does not come the whole way of applying what I might describe as the Royale or Justice Basten’s reasonable foreseeability test, but that is a way that actually works in terms of the operation of the statute.

That is what I wanted to say about the judgments.  My yellow light is on.  If I could just say a quick word about the directions, which are back at pages 29 and 44.  You will see at 44, line 30, the reference to:

even if the deceased grabbed the wheel for some reason –

That is what I am saying, that it has opened up completely.  All the work has to go onto the defence, if that is the case, because he did pull it for some reason.  If you just go back to 29, you will see at about line 32, that direction, “A person is the driver”, and then on the following page:

The Crown says she still has control over the mechanics –

That is a direction that is saying if you could somehow or another get your foot on the brakes, or if you could take your foot off the brakes, not that you could actually manage the vehicle.  So on this, you do not get to the defence if he pulls the wheel for any reason and she could get a foot on the brakes, she is guilty, and we say that that cannot be correct.  It means that subject to what she could prove on the defence she did not have a case to put.  That is the effect of it.  If the Court pleases.

KIEFEL J:   We need not trouble you, Mr Pickering.

We are not satisfied that the decision below is attended with sufficient doubt to warrant the grant of special leave.  Special leave is refused.

The Court will adjourn to reconstitute.

AT 11.05 AM THE MATTER WAS CONCLUDED