Director of Public Prosecutions v Spong [2018] ACTCA 37

Director of Public Prosecutions v Spong [2018] ACTCA 37 | Case summary | Zoe

The key principles of statutory interpretation are found in pt 14.2 of the Legislation Act 2001 (ACT) (Legislation Act). The interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation: s 139(1). The provisions of an Act must be read in the context of the Act as a whole: s 140.
In working out the meaning of an Act, material not forming part of the Act may be considered: s 141(1). An explanatory statement may be taken into account: s 142(1) and Table 142 item 4.However, in deciding whether such material should be considered and the weight to be given to the material, consideration must be given to the desirability of being able to rely on the ordinary meaning of the Act, having regard to its purpose and the provisions of the Act read in the context of the Act as a whole: s 141(2).
Confining our consideration to the terms of s 29 itself, the plain words of s 29(7) appear to fully define “negligently” for the purposes of s 29 culpable driving offences. We respectfully agree with the Victorian Court of Appeal’s observation in Horvath (at 539) about the legislation that was under consideration in that case; where a statutory test of negligence is clearly articulated, it is “both unnecessary and undesirable” to complicate that test.
When the offences under s 29 are viewed in the context of the ACT Crimes Act as a whole, the words used in s 29(7) are apposite to achieve the apparent purpose of s 29, which is to create an offence of causing death by driving that is less serious than the driving required to establish the offence of manslaughter and an offence of causing grievous bodily harm by driving that is less serious than the driving required to establish the offence of recklessly causing grievous bodily harm.
First, looking at the broader legislative environment, it can be seen that culpable driving by negligence is the middle offence in a three tier hierarchy of offences that applies to negligent driving causing personal injury. The lowest level offences are those of driving negligently causing death carrying a maximum penalty of 2 years’ imprisonment under s 6(1)(a) of the Road Transport (Safety and Management) Act 1999 (ACT) (RTSM Act), and driving negligently causing grievous bodily harm carrying a maximum penalty of one year imprisonment and/or 100 penalty units under s 6(1)(b). For such offences, the requisite negligence is a departure from the standard of care to be expected of the ordinary prudent driver in the circumstances: Wilkins v Hague [2011] ACTSC 189; 258 FLR 355 at [68], [82] referring to Johnson J in DPP (NSW) v Yeo [2008] NSWSC 953; 188 A Crim R 82 at [27].
Under ss 29(6)(a) and (7) the requisite negligence is substantially greater than bare negligence; it is negligence that involves a “gross degree” of departure from the appropriate standard of care. It is consistent with that approach that the level of negligence required to establish culpable driving is less than that required to establish the offences of manslaughter or recklessly causing grievous bodily harm
Second, the applicable penalties confirm these differences.
Third, where a person is charged with manslaughter by driving, the alterative verdict of culpable driving causing death is available under s 49. Similarly, where a person is charged with recklessly inflicting grievous bodily harm by driving, under s 49 an alternative verdict of culpable driving causing grievous bodily harm is available. The availability of alternative verdicts confirms that culpable driving is a lesser offence. It strongly suggests (if not demands) that the elements of the lesser offences set a lower threshold for criminality than do the elements of the greater offences.
The distinction between the degree of negligence required to prove manslaughter and that required to prove negligent culpable driving is confirmed by the legislative history.
As noted at [46] above, the Nydam test of criminal negligence for manslaughter has two aspects: “a great falling short of the standard of care which a reasonable man would have exercised” (very serious conduct) and “a high risk that death or grievous bodily harm would follow” (grave consequences).
Between 1979 and 1990, in the ACT culpable driving included both reckless driving and negligent driving. “Recklessly” was defined by reference to conscious and unjustifiable disregard of “a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result” from the driving, i.e. advertence to consequences. “Negligently” was defined by reference to the failure “unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances”, i.e. degree by which conduct deviated from the relevant standard of care. In 1990, the reference to “recklessness” was abandoned.
The 1990 amendments made it clear that, under s 52A (which became s 29) of the ACT Crimes Act, negligent culpable driving was to be determined by reference to the degree of departure from the required standard of care (the conduct), rather than by reference to advertence to the possible consequences of deviating from the required standard of care.

As the trial judge observed in this case, the ACT and Victorian culpable driving provisions define identically the expression “negligently”. The trial judge considered that she should follow the approach of the Victorian Court of Appeal in Bouch unless she was persuaded that the decision was “plainly wrong”.
However, the statutory contexts of the definitions are very different.
First, the Victorian provision covers only culpable driving causing death; it creates no offence of culpable driving causing grievous bodily harm. In Victoria, for many years the maximum penalty for culpable driving causing death has been the same as that for manslaughter. Consequently, in Victoria, culpable driving causing death has been seen as a species of manslaughter. As noted above, the decision in De’Zilwa turned on this consideration.
On the other hand, in the ACT the penalty for culpable driving causing death has always been significantly less than that for manslaughter by driving. Similarly, the maximum penalty for culpable driving causing grievous bodily harm has always been significantly less than that for recklessly inflicting grievous bodily harm.
Second, s 318(5) of the Victorian Crimes Act prohibits the charging of manslaughter and culpable driving in the same indictment. In contrast, s 29(10) of the ACT Crimes Act provides that nothing in s 29 affects the liability of a person to be convicted of manslaughter or any other offence. Section 49 and the associated table provide that culpable driving causing death is an alternative offence to manslaughter and culpable driving causing grievous bodily harm is an alternative offence to recklessly inflicting grievous bodily harm.
These two considerations emphasise that, in the ACT hierarchy of offences against the person caused by driving, culpable driving sits beneath manslaughter.
Third, in Victoria recklessness has been retained as a separate ground of culpability: s 318(2)(a). As discussed above, in 1990 recklessness was omitted from the ACT provision, which was thereafter focused on driving conduct rather than the possible consequences of such conduct.
Despite the fact that the ACT and Victorian culpable driving provisions identically define the expression “negligently”, the differences between the statutory contexts in which the words appear are such that it would be wrong to interpret the ACT provisions by reference to the Victorian authorities.
While the decision of the High Court in R v Falzon [2018] HCA 29 at [49] and the authorities there cited emphasise the need for intermediate appellate courts to follow the decisions of other intermediate appellate courts in relation to matters involving Commonwealth legislation, uniform legislative schemes and the common law, the position is not as clear in relation to similarly or identically worded State or territory legislation.
However, in this case, it is unnecessary to debate whether the “plainly wrong” test applies in such circumstances and, if so, the degree of legislative similarity that is required for the principle to apply: cf Tillman v Attorney General (NSW) [2007] NSWCA 327; 70 NSWLR 448. Suffice it to say that the differences between the ACT and Victorian legislative contexts are such that considerations of comity do not require that, when interpreting s 29 of the ACT Crimes Act, the ACT should follow the Victorian authorities.

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