Director of Public Prosecutions (NSW) v Kevin Frederick Edward Gardner & Anor

Judgment 1HIS HONOUR: The plaintiff, the Director of Public Prosecutions (NSW), seeks prerogative relief in respect of the decision of a Local Court magistrate in the prosecution of the first defendant, Kevin Gardner, for negligent driving occasioning grievous bodily harm. The magistrate found the charge to be bad for duplicity. The second defendant, the Local Court of New South Wales, has entered a submitting appearance. 2Put shortly, the prosecution case is that in the afternoon of 31 July 2011, Mr Gardner was driving a tray-back utility vehicle in Cullala Road, Mayfield. He stopped in the middle of the road and began to turn right into a driveway. In doing so he came into the path of a Mazda vehicle travelling in the opposite direction, and there was a collision. As a result, two passengers in the Mazda suffered injuries which required surgery. A passenger in the front seat, Samuel Townsand, suffered a broken nose and a fractured eye socket. A rear seat passenger, Leah Bell, suffered a perforated bowel and required treatment for seatbelt burns. 3The court attendance notice provided details of the offences in accordance with s 175(3) of the Criminal Procedure Act 1986, which relevantly provides: "(3) A court attendance notice must do the following: (a) describe the offence, (b) briefly state the particulars of the alleged offence ... ..." 4In the present case the offence was described as "negligent driving occasioning grievous bodily harm", and was said to be brought under s 42(1)(b) of the Road Transport (Safety and Traffic Management) Act 1999. The offence charged was that: "at 1:00pm on 31/07/2011 at Tarago Kevin GARDNER did negligently drive a motor vehicle, to wit, Silver Triton Utility, BI60LR, upon a road, to wit, Cullala Road, Mayfield." (The reference to Tarago as well as Mayfield escapes me, but nothing turns on it.) 5Section 42(1) of the Road Transport (Safety and Management) Act provides: "(1) A person must not drive a motor vehicle negligently on a road or road related area. Maximum penalty: (a) if the driving occasions death - 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence), or (b) if the driving occasions grievous bodily harm - 20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence), or (c) if the driving does not occasion death or grievous bodily harm - 10 penalty units." 6At the outset of the hearing in the Local Court the solicitor representing Mr Gardner, Ms Younes, submitted that the court attendance notice should be quashed because it failed to particularise what was said to have been an essential element of the offence, that is, the grievous bodily harm occasioned and to whom it was occasioned. The magistrate rejected that submission on the basis that the offence created by s 42(1) is negligent driving, and the fact that grievous bodily harm was occasioned to someone was a matter going only to sentence. As her Honour put it in her reasons: "On my reading of s 42(1)(b) there appears to me to be no requirement for the prosecution to refer to the grievous bodily harm and to whom that is occasioned in the court attendance notice. That is because the charge that is actually before the court is one of negligent driving and it comes down as a matter of sentence whether I accept beyond reasonable doubt that grievous bodily harm was occasioned to somebody or some persons ... ." 7Ms Younes' alternative submission was that the charge was duplicitous, and in the course of argument there was discussion of authorities on that question. Her Honour decided that it was duplicitous, and it is that decision which is the subject of these proceedings. 8In her reasons, her Honour noted that she had been taken to the distinction between the charge before her and the charge of dangerous driving occasioning grievous bodily harm under s 52A(3) of the Crimes Act 1900. She continued: "Of course, with dangerous driving, if two persons are said to have suffered grievous bodily harm, that would amount to two charges before the Court and the prosecutor says that is different to what we have here. However, bearing in mind what I have said from the common law about the need for the defendant to know what case he is meeting before he comes to court, it would have been of assistance to the defendant had the prosecution particularised that for him. There may well be a question in relation to one of those alleged victims as to whether that amounted to grievous bodily harm and if the prosecution was only going to be relying upon the other person, then the defendant would have unnecessarily had to prepare the case on both bases were the matter to have got to sentence. I AM THEREFORE OF THE VIEW THAT THE ARGUMENT THAT THE CHARGE IS DUPLICITOUS BY RELYING UPON MORE THAN ONE ALLEGED VICTIM IS TO BE UPHELD ON THE BASIS OF THE INFORMATION BEFORE ME, AND IF THE MATTER GETS TO SENTENCE THEN THAT WILL BECOME RELEVANT AT THAT STAGE." 9The prosecutor sought clarification that Ms Younes' application had been upheld in relation to the issue of duplicity, to which her Honour replied, "I haven't quashed the CAN but you can only rely on one victim." Her Honour adjourned the matter, giving directions that the prosecution inform the defence in writing what was the grievous bodily harm alleged and to which victim was it said to have been occasioned. It remains adjourned pending my decision. 10By an amended summons in this court, the Director of Public Prosecutions seeks an order in the nature of certiorari to quash the magistrate's ruling that the court attendance notice is duplicitous and a declaration that her Honour erred in so finding. 11The principles relating to duplicity are easy enough to state, but are not always easy to apply. The Crown Advocate, Ms Adams SC, who appeared with Ms Davidson for the Director, referred to the succinct summary of them by Simpson J in R v Agius & Ors [2011] NSWSC 367, 251 FLR 375, at [53] and [55]: "[53] ... Duplicity exists where a single charge, properly understood, alleges two or more different offences: see Walsh v Tattersall [1996] HCA 26; 188 CLR 77 at p 84, per Dawson and Toohey JJ (who dissented as to the outcome), citing Archbold: Criminal Pleading, Evidence and Practice, 44 th ed, (1995), Vol 1, p 75. In determining whether duplicity exists in a charge as framed, much will depend upon the proper construction of the statutory provision that creates the offence. ... [55] There has been a trend to divide alleged duplicity into two kinds, labelled 'patent' and 'latent': see, for example, B v R [2008] NSWCCA 85 at, for example [11], [16]-[17], [52]-[53]. There is no clear line dividing the two. 'Latent duplicity' is sometimes referred to, perhaps more accurately, as 'latent ambiguity': Johnson v Miller [1937] HCA 77; 59 CLR 467 at 486; S v R [1989] HCA 66; 168 CLR 266 at 274; Stanton v Abernathy (1990) 90 NSWLR 565 at 669E-F; B v R at [52]-[53]. 'Latent' duplicity is duplicity that is not apparent on the face of the indictment, but can be identified on examination of the manner in which the prosecution proposes to put its case, or from the particulars supplied. Essentially, a charge is latently duplicitous if, on that examination, it can be seen that the person accused may (with respect to a single charge) be convicted of one of a number of different offences." 12In Walsh v Tattersall, to which her Honour referred, Dawson and Toohey JJ (also at p 84) described the rule against duplicity "as one of elementary fairness, to enable the defendant to know what it is of which he has been charged or found guilty and so that he has the opportunity of making a no case submission or a sensible plea in mitigation." Their Honours added, by reference to authority, that "duplicity is a matter of form, not a matter relating to the evidence called to support the count ... ." 13As Simpson J observed in the passage quoted from Agius, the determination of a question of duplicity will depend upon the proper construction of the statutory provision creating the offence. At [54] her Honour cited the following passage from the judgment of Bray CJ in Romeyko v Samuels [1972] 2 SASR 529 at 552: "The true distinction, broadly speaking, it seems to me, is between a statute which penalizes one or more acts, in which case two or more offences are created, and a statute which penalizes one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow." 14A finding of duplicity does not mean that the charge must be dismissed. Where the duplicity is patent the prosecution should be put to an election. Where it is latent various courses may be taken, including the direction of further particulars: Walsh v Tattersall per Kirby J at p 110. In the present case her Honour effectively put the prosecutor to his election by ruling that he could rely only on one victim, as well as ordering further particulars. 15Ms Adams submitted that her Honour applied the wrong test in determining that this charge was duplicitous. Her reasons for that finding were that there was more than one person who might be said to have suffered grievous bodily harm as a result of Mr Gardner's driving, and that he would be assisted in meeting the case against him by particulars of the grievous bodily harm and the identification of the relevant victim. Ms Adams argued that, for the purpose of deciding the duplicity issue, her Honour failed to have regard to the nature of the offence created by the relevant provision. Indeed, she argued, her Honour's finding of duplicity was inconsistent with her decision not to quash the court attendance notice, which had been based upon a construction of the subsection as creating an offence simply of negligent driving, the occasioning of grievous bodily harm being a matter relevant only to penalty. 16Ms Adams referred to authority for the proposition that a charge alleging harm to more than one victim would not necessarily be duplicitous. In Jemmison v Priddle [1972] 1 QB 489, the defendant was charged with a statutory offence of killing game without a licence, the charge arising from his shooting two deer on the one occasion. On appeal against his conviction, an argument that the charge was bad for duplicity was rejected. Lord Widgery CJ, with whom Ashworth and Griffiths JJ agreed, observed at 495 that it is "legitimate to charge in a single charge one activity even though that activity may involve more than one act." His Lordship continued: "One looks at this case and asks oneself what was the activity with which this man was being charged. It was the activity of shooting red deer without a game licence, and although as a nice debating point it might well be contended that each shot was a separate act, indeed each killing was a separate offence, I find that all these matters, occurring as they must have done within a very few seconds of time and all in the same geographical location, are fairly to be described as components of a single activity, and that made it proper for the prosecution in this instance to join them in a single charge." 17In Spry v Flynn & Duvall (Hunt J, unreported, 10 February 1983) his Honour considered an information in which the offence alleged was committing an act of cruelty "upon several animals, to which, twenty-eight (28) cats." There was a further charge in similar terms alleging an act of aggravated cruelty, as that expression was defined in the relevant legislation, upon six cats. The evidence was that the defendant had exposed all thirty-four cats to excessive heat by keeping them over a period of time within a campervan body attached to a truck. Six of the cats had died, giving rise to the offence of aggravated cruelty. 18Hunt J found the informations were not bad for duplicity. After referring to an article "Duplicity in Indictments and Informations" by William Paul (1935) 8 ALJ 430, his Honour said (at p 7): "In my opinion, it is clear from the authorities that an Information will not be held to be bad for duplicity merely because it mentions several persons or things as having been affected by the defendant's one act. An example suggested by the informant during argument well illustrates this: 'if a person pours acid into a fish bowl, it matters not that his one act resulted in the death of numerous fish, and he could be charged with a single offence in the one Information. On the other hand, if a person beat and injured a number of animals at the same place and at about the same time, but by distinctly different acts, it would seem that he would have to be charged separately in relation to each animal.' In his article, Mr Paul poses as the relevant test: does the 'gist' of what the defendant did amount to 'one act and one entire transaction'?" His Honour concluded that the "gist" of what the defendant did in that case amounted to "one act and one entire transaction." (This decision is reported in part in [1983] 1 NSWLR 190, but this aspect of it is not in the report.) 19In R v Harris; Ex parte Attorney General (1999) QCA 392, 30 MVR 334, the Queensland Court of Criminal Appeal was dealing with a prosecution appeal against sentence for a charge of dangerous driving causing death or grievous bodily harm under s 328A(4) of the Criminal Code (Qld). Relevantly, that subsection provides: "(4) A person who operates ... a vehicle dangerously in any place and causes the death of or grievous bodily harm to another person commits a crime and is liable upon conviction upon indictment to [provisions for penalties are then set out.]" 20A single count against the respondent charged him with dangerous driving causing the death of one person and grievous bodily harm to another. Although it was not necessary to determine the sentence appeal, counsel asked the court to express a view whether the count was bad for duplicity. Pincus JA, with whom de Jersey CJ and Thomas JA agreed on the point, held that it was not. 21Pincus JA considered authority on duplicity, including Jemmison v Priddle, and observed at [26] that it is not necessarily the case that "there are, in general, as many offences as victims." His Honour concluded at [28]: "In summary, there are three considerations which appear to point in the direction of holding the present indictment not to be duplex: that on the face of the definition of the offence in the Code its substance or essence is the wrong operation of the vehicle, rather than its result or the circumstances attending it; that treating such a case as the present as involving one offence only appears to produce a result conforming with commonsense and fairness, particularly since the other view could give rise to many offences consequent upon a single collision; that there was only one activity or transaction." 22Thomas JA added the following observations at [40]: "If the single act of driving causes multiple deaths or grievous bodily harm, there is no good reason why all such results should not be included in the one indictment although proof of one of them is enough to justify conviction of the crime there defined: ie the offence which renders an offender liable to a maximum penalty of 7 years imprisonment. The combined consequences of the criminal act of the offender are of course relevant to the overall question of penalty. Double punishment does not result, as the same overall result would be expected if the conduct and its consequences had been subdivided into concurrent offences. In my view under s 328A(4), both in principle and in practice, an indictment with a single count containing the full result of the criminal act is a more satisfactory procedure than an indictment with multiple counts based on subdivision of the results of the criminal act." 23As to the desirability of furnishing Mr Gardner with particulars, Ms Adams referred to well established authority that a court of summary jurisdiction has an implied power to order particulars in any case where it is necessary to meet a defendant's entitlement to know the charge he or she is called upon to meet. The principle was restated, with reference to authority, by Campbell JA (with whom Mason P and Tobias JA agreed) in Knaggs v Director of Public Prosecution (NSW) & Anor [2007] NSWCA 83, 170 A Crim R 366 at [52], [69] - [71]. The power is not confined to charges found to be bad for latent duplicity, as Simpson J recognised in R v Agius (supra) at [65]. In the present case it was open to her Honour to have ordered the particulars she did even if she had not found duplicity in the court attendance notice. 24Counsel for Mr Gardner, Mr Barrow, took issue with her Honour's view that the offence under s 42(1) was simply the negligent driving, and that the occasioning of death or grievous bodily harm was a matter going only to penalty. He argued that where either of those consequences is alleged it was an element of the offence. He noted that the subsection provides for a fine only if the driving does not result in death or grievous bodily harm, but provides for much higher fines and significant terms of imprisonment if one or other of those outcomes is occasioned. 25Mr Barrow referred to the elements of the offence under s 42(1)(b), and the form of charge for that offence, set out in Butterworths' publication Criminal Practice and Procedure NSW, Volume 4 at [27-80, 665-660]. The form of charge alleges that the accused "... did drive a motor vehicle ... on a road/road related area negligently thereby occasioning grievous bodily harm to [name of victim]." The elements of the offence are set out as: (1) The accused drove a motor vehicle negligently; (2) on a road or road related area; (3) a person suffered grievous bodily harm; (4) the grievous bodily harm was occasioned by the negligent driving of the accused. 26That said, Mr Barrow took the view that by referring to the offence in the present case as negligent driving "occasioning grievous bodily harm", the court attendance notice sufficiently specified that outcome as an element of the offence charged. For that reason he did not challenge her Honour's refusal to quash it. Ms Adams embraced her Honour's view, accepting (as did her Honour) that even though the occasioning of death or grievous bodily harm went only to sentence, it would need to be established beyond reasonable doubt. 27It is true that, on a literal reading, s 42(1) appears to create an offence of negligent driving, with paragraphs (a) - (c) providing for maximum penalties for that offence varying according to the circumstances specified in each paragraph. Nevertheless, the approach urged by Mr Barrow has much to commend it. However, this matter was not fully argued and I prefer to express no concluded view about it. In the event, it does not need to be decided for present purposes. 28On the question of duplicity, Mr Barrow submitted that the offences of negligent driving causing death or grievous bodily harm take their place in a category of offences of that kind of escalating gravity. He cited a passage from the judgment of Howie J in R v Borkowski [2009] NSWCCA 102, 195 A Crim R 1, a Crown appeal against sentence for manslaughter arising from a motor vehicle accident. His Honour said at [56]: "As the law presently stands, there is a rational, logical and cohesive hierarchy of offences concerned with the infliction of death or serious injury by the use of a motor vehicle. The offences range from negligent driving causing grievous bodily harm (s 42(1)(b) of the Road Transport (Safety and Traffic Management) Act with a maximum penalty of 9 months imprisonment) through the driving offences in the Crimes Act to manslaughter by gross criminal negligence. All of these offences involve varying degrees of negligence, however the actual conduct may be described, ranging from a lack of care and proceeding through dangerousness to culpable negligence ... " 29Obviously, a charge of manslaughter arising from a motor vehicle accident could relate to one victim only. The same is true of the offences of dangerous driving causing death or grievous bodily harm under s 52A of the Crimes Act. That section provides for dangerous driving occasioning death in subs (1), and an aggravated form of that offence in subs (2). Dangerous driving occasioning grievous bodily harm is to be found in subs (3), and an aggravated form of that offence in subs (4). It might be noted that that legislative scheme is different from the Queensland provision considered in R v Harris (supra). It is accepted that a charge under any one of those subsections can relate to one victim only, and that has been the invariable practice in this State. 30Mr Barrow argued that the same approach should be taken to the framing of a charge under s 42(1)(a) or (b). If it were otherwise, he said, a single charge under either of those paragraphs could be laid irrespective of the number of persons who were killed or who suffered grievous bodily harm. That is the approach to be found in the passages from the Criminal Practice and Procedure set out above, the form of charge and elements of the offence for both paragraphs being expressed in a relevantly similar way. That approach, Mr Barrow submitted, "achieves clarity, certainty and particularisation." 31Mr Barrow referred to the disapproval expressed by Kirby J in Walsh v Tattersall of what he perceived to be a recent tendency to relax the strict requirements of pleading a criminal charge. His Honour said at pp 110 - 12: "With all respect to those who are of a different view, I cannot agree to any reduction in the strict approach to resolving questions of duplicity in the pleading of criminal charges. A strict approach has been consistently applied by this Court from Johnson v Miller [(1937) 59 CLR 467] through Iannella v French [(1968) 119 CLR 84] and up to S v The Queen [(1989) 168 CLR 266], the latter being decided in 1989. Quite apart from the consistent application of the authority of this Court, there are reasons of legal principle or policy which favour the approach of this Court and which resist the approach which has apparently found favour in England and New Zealand. These reasons are: 1. Compliance with the rule of strictness is a correct practice to require of prosecutors. It obliges them, at the outset of criminal proceedings, to define with accuracy each criminal offence which they intend to prosecute and to identify, in respect of each, the elements of the offence necessary to secure a conviction. 2. The rule of strictness is also desirable for the fair trial of the accused, basically for the reasons identified long ago in Johnson v Miller ... and restated in S v the Queen ... . The rule helps to address the attention of the accused (and any legal representative the accused may have) to the elements of each alleged offence. It assists in decisions about how to plead. It clarifies contested questions about the admissibility of evidence relevant to the offences so specified. It contributes to accurate sentencing where a conviction is recorded upon those offences. It also avoids later problems with respect to pleas of autrefois acquit or autrefois convict. ... 5. A holding which would diminish the stringency of this Court's past authority would encourage imprecision in criminal pleading where precision is desirable. It would condone a slackness in the pleading of criminal charges which this Court has hitherto rejected. It would substitute pious words for a strict legal practice which the courts uphold. As this case demonstrates, precision is often needed because the point is not immediately seen by the accused or those representing the accused. Not all accused are legally represented. Those who are may not be adequately represented. The availability of legal representation in cases involving offences such as those charged here may decline with other demands on public legal assistance. It is therefore desirable that this Court's instruction should be addressed to the practices of prosecutors and to the attention of judicial officers." (By way of explanation of those last statements, that case was also concerned with a summary prosecution.) 32No one could deny the force of those observations. Nevertheless, I am satisfied that the charge in the present case is not bad for duplicity. On its proper construction, s 42(1)(b) penalises negligent driving which causes grievous bodily harm, whether to one person or more than one. To adapt the language of Bray CJ in Romeyko v Samuels referred to at [13] above, the provision penalises the act of driving if it possesses the forbidden characteristics of being negligent and having caused grievous bodily harm, to whomever that harm may have been caused. 33Section 52A of the Crimes Act creates distinct offences of dangerous driving causing death or grievous bodily harm to a person. The approach in this State to framing charges under that section is consistent with that legislative framework, and recognises the gravity of the offences with which it is concerned. As I have said, the approach in R v Harris was directed to a different legislative scheme in Queensland and does not represent the practice here. Nevertheless, for present purposes, I find the observations of Thomas JA quoted at [22] above helpful. While the maximum terms of imprisonment under s 42(1) for negligent driving causing death or grievous bodily harm are significant, they are relatively modest. This reflects the fact that, although the consequences of the negligent driving are serious, the culpability of the driving itself is relatively low. Where negligent driving has caused grievous bodily harm to more than one person, it is appropriate that those consequences be embraced in one charge. As Thomas JA observed, those "combined consequences" are relevant to the "overall question of penalty." 34Of course, whether or not it is strictly an element of the offence, if grievous bodily harm is alleged the defendant must be made aware of that fact and be supplied with adequate particulars of it. The proper practice, in my view, is to specify that allegation and provide brief particulars of it in the court attendance notice. Depending on the circumstances of the case, it may be necessary for the prosecution to provide fuller particulars of the grievous bodily harm separately. What should be the approach where an accident has caused both death and grievous bodily harm is not a matter which needs to be decided in this case, and I express no concluded view about it. However, notwithstanding the view of the court in R v Harris, I would think it preferable that they be the subject of separate charges, given that those two consequences are dealt with in separate paragraphs and carry different maximum penalties. 35Accordingly, I am satisfied that the magistrate fell into error in the present case and that the Director is entitled to the order and the declaration sought. The matter must be remitted to the Local Court to be determined according to law. Mr Gardner is to pay the Director's costs, but I note that the Director seeks no more than the amount Mr Gardner could obtain by way of a certificate under the Suitor's Fund Act 1951. I shall consult the parties as to the form of order under that Act which should be made. 36I request the parties to bring in short minutes to give effect to my ruling, in relation to substantive relief and costs.