Kruger v Kidson [2004] NTSC 24

Burns v Bidder [1967] 2 QB 227; He Kaw The v The Queen [1985] HCA 43; (1984-1985) 157 CLR 523 at 564-565 and 570; Hoessinger v The Queen [1992] NTSC 23; (1992) 62 A Crim R 146 at 149; Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at 581; Kroon v The Queen (1991) 52 A Crim R 15; Police v Adams [1971] 1 NZLR 695; Kroon v The Queen (1991) 55 SASR 476; Mayer v Marchant (1973) 5 SASR 567;

Norcock v Bowey [1966] SASR 250; R v Hinz [1972] Qd R 272; Sanby v The Queen [1993] NTCCA 84; (1993) 117 FLR 218 at 222; Waldie v Cook (1988) 91 FLR 413; applied

Bruce v Williams (1989) 10 MVR 451; Cavallaro v Waterfall (1988) 8 MVR 271; Chiou Yaou Fa v Morris [1987] NTSC 20; (1987) 46 NTR 1 at 25-26; Larsonneur's Case (1933) 24 Cr App Rep 74; R v Walters (1969) 1 QB 255; Rubie v Faulkner [1940] 1 KB 571; Schmid v Keith Quinn Motor Co P/L (1987) 29 A Crim R 330 at 339; Wilson v Ministry of Transport (1972) NZLR 651; referred to

Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536; followed

Smith & Hogan, Criminal Law, 6th ed, pp 41-42, pp 46-47

Peter Gillies, Criminal Law, 4th ed, pp 28-29, pp 104-107, p 121

Kruger v Kidson [2004] NTSC 24

[1] This most unusual case is an appeal against conviction and sentence pursuant to s 163 of the Justices Act.

[2] The appellant was charged with driving a motor vehicle on a public street whilst having a concentration of alcohol in his blood equal to 80 milligrams or more of alcohol per 100 millilitres of blood, namely 260 milligrams of alcohol, contrary to s 19(2) of the Traffic Act and regulation 12(10) of the Traffic Regulations.

[3] Regulation 12(10) provides:

A licence holder who is occupying a front seat of a vehicle that is being driven by a learner is liable for an offence that is committed by the driver as if the licence holder was the driver of the vehicle.

[4] Regulation 11 of the Traffic Regulations defines "learner" to mean "a driver who is the holder of a permit licence granted under section 9 of the Motor Vehicles Act that permits the person to drive the motor vehicle". "Licence holder" is defined by the regulations to mean "a person who is over 18 years of age and is the holder of a licence (not being a permit licence under section 9, or a licence that is provisional under s 10A of the Motor Vehicles Act) to drive the type of vehicle". The word "offence" in regulation 12(10) is not defined.

[5] The facts, as found by the learned Magistrate, were that the appellant was the owner (and the registered owner) of a Ford Falcon sedan registered number 628 698. The appellant held a current driver's licence. The evidence before the learned Magistrate, which he apparently accepted, was that the appellant's vehicle had been driven by a person called Aranui to a nightclub called Rio's. At some stage the appellant left Rio's and fell asleep in the front passenger seat of the vehicle. Aranui still had the keys to the vehicle. The appellant was drunk. Aranui woke him up and told him that a woman called Lelah wanted to drive the vehicle. The appellant asked her if she had a licence, to which she responded, "Yes". He asked her if she was drunk, to which she answered, "No". The appellant then fell asleep. The appellant was not told, nor did he know, that Lelah held only a learner's permit. The appellant woke up when the vehicle, which was being driven by Lelah, was pulled over by police. She was breathalysed and a reading of .260% obtained and was subsequently charged and convicted of driving with a blood alcohol level in excess of .08%, contrary to s 19(2) of the Traffic Act. The learned Magistrate found that the appellant showed, by making his enquiries, that he knew that Lelah wanted to drive his vehicle, and that he impliedly gave her that permission because he did not refuse her request or because he did nothing to prevent her from driving. The appellant maintained during his evidence that he had not given permission for his car to be driven by Lelah and he did not know she had driven it until the car was stopped by police. The appellant was convicted and without further penalty, his licence was disqualified for a period of 5 years.

[6] At the hearing of this appeal, counsel for the appellant expressly disavowed any argument that regulation 12(10) was invalid, and the appeal was conducted on the basis that the regulation is a valid exercise of the regulation-making power conferred by s 53 of the Traffic Act. I have a doubt as to the validity of the regulation in question, but in view of the approach taken by counsel for the appellant, I will confine my consideration of this appeal to the questions argued by counsel on the assumption that regulation 12(10) is in fact valid.

[7] So far as the appeal against conviction is concerned, the first argument put by the appellant is that, as a matter of construction regulation 12(10) applies only where the licensed driver has accepted his role as, in effect, the supervisor of the learner driver. As the appellant was not consciously aware that Lelah was the driver and that she held only a learner's licence, the appellant cannot be held liable, as he did not accept his role as her instructor. Alternatively, it was put that in order to be convicted of the offence, the Crown had to show that the appellant knew that he was occupying the passenger's seat at a time when the car was being driven by a learner, and, that the finding of the learned magistrate that he had such knowledge as he did was (a) wrong; and (b) inadequate to impose liability. Further, it was submitted that the appellant's act in occupying the front passenger's seat, whilst the vehicle was driven by a learner, was involuntary and, therefore, not his act.

[8] One of the difficulties with regulation 12(10) is that it does not by itself clearly create an offence, but makes the licensed driver vicariously liable for offences committed by the learner driver. In this respect the regulation differs from approaches taken in other jurisdictions. In New South Wales, the person in charge is guilty of an offence if he "causes, permits or allows, or fails to take reasonable precautions to prevent, a contravention" of regulation 12 which deals with learner drivers. In addition, regulation 12 provides that the person accompanying the learner must supervise the learner and take all reasonable precautions to prevent a breach of the relevant road traffic legislation. The owner or person in charge could also be charged with offences against any other law as an accessory: see Rubie v Faulkner [1940] 1 KB 571; Cavallaro v Waterfall (1988) 8 MVR 271 and Bruce v Williams (1989) 10 MVR 451. In Victoria, reg 214 of the Road Safety (Drivers) Regulations provides that the "experienced driver" commits an offence if the learner does not display an L plate; but otherwise the "experienced driver" is not made statutorily liable for the learner driver's mistakes. In South Australia reg 27 of the Motor Vehicle Regulations 1996 requires the person acting as a qualified passenger for a learner driver "to take all reasonable steps to supervise and instruct the learner driver in the safe and efficient driving of motor vehicles", but does not otherwise impose liability upon the qualified passenger. In some jurisdictions from time to time the front seat passenger has been deemed to be the driver. Regulation 12(10) of the Traffic Regulations is an attempt to go further than any of these provisions by making the licensed driver vicariously liable for offences committed by the learner driver. Prima facie the type of offence which may be committed vicariously by the front seat passenger is not restricted to a breach of the Traffic Regulations, nor even the Traffic Act, but would appear to encompass any offence committed by the driver. By inference, this must be limited to offences committed by the driver at the time of driving the vehicle, but this still leaves open the possibility of vicarious liability for more serious offences, such as a dangerous act contrary to s 154 of the Criminal Code, and possibly manslaughter as the result of culpable driving, unless the regulation is able to be further confined in some way, perhaps by reading it down vide s 61 of the Interpretation Act or be reading into it some restriction by necessary implication, or by confining it to regulatory offences vide regulations 92 and 93 of the Traffic Regulations, or by confining it to breaches of the Traffic Regulations. I note that the offence for which the appellant was convicted, i.e. a breach of s 19(2) of the Traffic Act, is a regulatory offence.

[9] I am not persuaded that regulation 12(10) applies only where the licensed driver has accepted his role as the supervisor of the learner driver. It appears from regulation 12(2) that a licence holder must occupy the front passenger seat whilst the learner is driving, but there is no provision apart from regulation 12(10) requiring the licence holder to exercise any control over the driver. Nor am I persuaded that proof of knowledge by the licence holder of the driver's status as the holder of a learner's license is required: cf Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536. However, that does not necessarily mean that the appellant was wrongly convicted.

[10] I am of the opinion that the learned Magistrate fell into error in concluding that the appellant gave Lelah permission to drive his vehicle. The facts are consistent with a finding that the appellant fell asleep, due to his state of intoxication, before he gave his consent.

[11] That being so, it was not open to find that the appellant voluntarily occupied the passenger's seat at a time when the car was being driven by a learner, because he was asleep at the relevant time. Although the offence is regulatory, and s 31 and s 32 of the Criminal Code do not apply to it (see Criminal Code s 22), an act which is not voluntary is not the act of the appellant. There is nothing in the definition of "act" contained in s 1 of the Code, to require the Court to conclude that an act which is involuntary is nevertheless the act of an accused person.

[12] I note also that there are at least two decisions of this Court where it has been held that an offence to which the provisions of s 31 do not apply must be the result of a voluntary act on the part of the accused. In Hoessinger v The Queen [1992] NTSC 23; (1992) 62 A Crim R 146 at 149, Gallop J said, that an act, in order to constitute an offence against s 154 of the Code, must be voluntary. In Sanby v The Queen [1993] NTCCA 84; (1993) 117 FLR 218 at 222, Angel J reached the same conclusion. I respectfully agree. Although those decisions dealt with an offence against s 154 of the Code, which is not a regulatory offence, I do not consider that this makes any difference in principle. At common law, there is no doubt that a person is not guilty of a regulatory offence unless the person has voluntarily committed the relevant act: Burns v Bidder [1967] 2 QB 227; Police v Adams [1971] NZLR 695; R v Hinz [1972] Qd R 272; Waldie v Cook (1988) 91 FLR 413; Kroon v The Queen (1990) 55 SASR 476, (1991) 52 A Crim R 15; Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at 581. This is because, shortly put, the act for which the accused must be held responsible in order for there is be a finding of guilt is not his act at all. In my opinion the same applies to regulatory offences in the Northern Territory, notwithstanding that the criminal law in this Territory is, to the extent indicated by s 5 of the Criminal Code Act, the relevant law of the Territory.

[13] Counsel for the respondent, Ms Armitage, submitted that this was a case of absolute liability. In part that submission rested upon s 22 of the Code which excludes not only s 31 (intent) with respect to regulatory offences, but also mistake of fact (s 32) and sudden and extraordinary emergency (s 33). So far as voluntariness is concerned, reference was made to the heading to s 31, "unwilled act, &c, and accident". S 31 does not, by its terms, refer to voluntariness, although there are some cases in which voluntariness was treated as part of the mens rea: see, for example, He Kaw Teh v The Queen [1985] HCA 43; (1984-1985) 157 CLR 523 at 570 per Brennan J. In my opinion, the better view is that voluntariness is an aspect of the act or omission creating liability; it is not part of the mens rea: see the discussion in Smith & Hogan, Criminal Law, 6th Ed, pp 41-42; Peter Gillies, Criminal Law, 4th Ed, pp 28-29. Whether that be so or not, the provisions of s 31 do not deal with voluntariness, and as the heading to s 31 is not part of the Statute vide s 55(3) of the Interpretation Act, it is not open to use the heading to s 31 to interpret that section so as to include voluntariness. Nevertheless, it may be difficult to rely upon a Proudman defence (Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536) in the Northern Territory given the exclusion of s 32 from regulatory offences in this Territory, a matter which, fortunately, I do not have to resolve in this case.

[14] However, that is not necessarily the end of the matter as there are a number of authorities to the effect that a crime may be so defined that it can be committed although there is no "act" in any relevant sense, merely a state of affairs for which a person may be held liable: see the discussion by Brennan J in He Kaw Teh v The Queen, supra, at 564-5. These sorts of offences are commonly called "status" or "situation" offences: see, for example, the discussion in Smith & Hogan, Criminal Law, 6th Ed, pp 46-47; Gillies, Criminal Law, 4th Ed, pp 104-105. Examples of this kind of case are Larsonneur's case (1933) 24 Cr App Rep 74, R v Walters [1969] 1 Q 13 255; Wilson v Ministry of Transport [1972] NZLR 651. Even in status or situational offences, a defendant who is blameless through an act of God or the act of a stranger has a good defence (the evidentiary burden being on the defendant): see Norcock v Bowey [1966] SASR 250; Mayer v Marchant (1973) 5 SASR 567; Gillies, op cit at pp 105-106.

[15] Notwithstanding that defences such as the Norcock defence and the Proudman defence have been held to apply generally to cases of strict liability, there are cases where those defences do not apply. These are sometimes referred to as cases of absolute liability: see the discussion by Asche J in Chiou Yaou Fa v Morris [1987] NTSC 20; (1987) 46 NTR 1 at 25-26, and the discussion in Gillies, op cit at p 107. Although cases of absolute liability exist, the Courts are extremely reluctant to draw the conclusion that this was the intention of the legislature, as this would mean that even those who are utterly blameless will be caught by the legislation. In Schmid v Keith Quinn Motor Co Pty Ltd (1987) 29 A Crim R 330 at 339, Bollen J said:

In deciding whether legislation is so absolute, one must examine the objects of the legislation, the words in the whole Act, the scheme of the Act and the words of the relevant section or sections. One should, too, stand back to consider whether by the imposition of absolute liability you will readily assist the object of the legislation and not merely catch a luckless victim.

[16] Statutory provisions providing for vicarious liability do not necessarily result in the imposition of absolute liability, whether or not the liability involves the imposition of a criminal sanction. The question is, as always, a matter of statutory interpretation. The most obvious example is the case of an employer made vicariously liable for the acts of his servants. It is well established that liability is restricted to acts of servants committed in the course of their employment: see Gillies, supra, at 121.

[17] However, I am not satisfied that the words of the regulation, "a licence holder who is occupying a front seat of a vehicle that is being driven by a learner" were meant to impose absolute liability on the front seat passenger. In my opinion, there must still be proof of the act of occupying the front seat of the vehicle at the relevant time, in addition to the relevant act of the learner driver constituting an offence, before the occupier can be found vicariously liable. I do not see how it would assist the object of the regulation to decide that an unconscious front seat passenger is vicariously liable for the acts of the learner driver whom he has not authorised to drive his vehicle. In my view, the act of sitting in the driver's seat at the prescribed time was not the voluntary act of the appellant and, therefore, not his act, because of his state of unconsciousness. Alternatively, the appellant was blameless and is entitled to rely on a Norcock defence, because without his knowledge or approval the learner driver drove his vehicle whilst he was asleep in the passenger's seat.

[18] In these circumstances the appeal must be allowed and the conviction and license disqualification set aside, and in lieu thereof a verdict of not guilty entered.