Filz v Knox [2002] TASSC 82

Traffic Act 1925 (Tas), s32(2A).

Fehlberg v Gallahar [1957] Tas SR 286; Robertson v Watts 51/1964; Price v Fletcher [1972] Tas SR 35, applied.

Respondent: O P Holdenson QC and G A Richardson

Judgment Number: [2002] TASSC 82

1 The respondent was charged on a complaint with two counts of causing death by negligent driving, contrary to the Traffic Act 1925, s32(2A). It was alleged that on 4 January 2001, he drove a motor vehicle negligently on the Guildford Hampshire Main Road, thereby causing the death of Glen John Harman and Mietta (Maria Fernanda) O'Donnell.

2 The particulars of negligent driving were the same on each charge and there were five of them. It is common ground that once the evidence had concluded, the prosecution case depended entirely on establishing particular (a) and that what was contained in particulars (b), (c), (d) and (e) were merely consequences of what was alleged in particular (a). Particular (a) was that the respondent failed to keep a proper lookout by leaving the travelled portion of the roadway and driving on the gravel verge to the left of the bitumen. Before me the parties were in agreement that the magistrate found that he was not satisfied beyond reasonable doubt that there was a failure to keep a proper lookout. In my view, once that finding was made by the learned magistrate then, regardless of the test he applied for negligent driving, his Worship had to dismiss the complaint.

3 There is merit in grounds 1 and 2 of the motion to review. They attack the determination of the learned magistrate that the test for negligence was contrary to the test as submitted by both parties, and contrary to the test articulated by judges of this Court. His Worship held that because an ingredient of the offence is that the negligent driving caused death, it must be proved that the negligence was culpable.

4 That is the test for manslaughter under the Criminal Code when negligence is alleged to have caused death. It has never been the test for negligent driving under the Traffic Act and I reject any suggestion that Parliament intended, when it inserted the offence of causing death by negligent driving into the Act in 2000, a new test for negligence was to apply under the Traffic Act. In this Court, as a judge at first instance I should apply what has been said over the years by other judges when dealing with negligent driving under the Act. With respect, the learned magistrate should have done the same. Those judicial statements may be found in cases that include Fehlberg v Gallahar [1957] Tas SR 286, Robertson v Watts 51/1964 and Price v Fletcher [1972] Tas SR 35. There are, of course, authorities in some other jurisdictions, in cases that concerned offences similar to the ones in this case but in legislation creating crimes, for the proposition that culpable negligence must be proved. But that has never been required for negligence under the Traffic Act and having regard to the consistent line of authority in this State, it would not be appropriate for me or a magistrate to hold that culpable negligence now has to be proved.

5 It is therefore my conclusion that the learned magistrate was wrong in his determination concerning the test for negligent driving and that grounds 1 and 2 have been made out.

6 Grounds 3 and 4 were argued by Mr Neasey for the applicant essentially as a defence to an argument that might have come from the respondent that a finding of negligence was not open on the evidence in this case. But I do not see it as necessary to deal with grounds 3 and 4.

7 I determine the motion in favour of the respondent because even though grounds of the motion succeed, no substantial miscarriage of justice occurred. Under the Justices Act 1959, s110(2)(ab), it is provided:

"On the hearing of a motion to review, the court shall, upon consideration of the evidence and materials adduced and brought before the justices and such further evidence (if any) as it thinks fit, review the order so far as relates to the ground set forth in the notice to review, and thereupon may do all or any of the following things, namely:

(ab) in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion;"

8 As I said earlier, it is common ground that the magistrate found on the evidence that he was not satisfied beyond reasonable doubt that there was a failure on the part of the respondent to keep a proper lookout. That was a finding that, in my view, was reasonably open on the evidence. Once that finding had been made, the test for negligence became irrelevant. The finding rejected the only particular of negligence that remained on the prosecution case. The dismissal of the complaint was inevitable once the finding had been made.

9 For these reasons, the motion to review will be dismissed.