Neskovski v The Queen [2022] VSCA 86

CRIMINAL LAW - Appeal - Sentence - Failure to stop after motor vehicle accident - Failure to render assistance - Whether double punishment - Separate offences - Whether error in sentencing applicant on basis he knew accident occurred - Open to make finding of actual knowledge - No error - Leave to appeal refused.

1 The applicant was convicted, after a trial, of one charge of failing to stop after a motor vehicle accident and one charge of failing to render assistance after a motor vehicle accident. He was acquitted of the principal charge of dangerous driving causing death.

2 He was sentenced to 2 years and 6 months' imprisonment on the failure to assist charge and 2 years' imprisonment on the failure to stop charge. With cumulation of 6 months of the latter sentence, the total effective sentence was 3 years' imprisonment. A non-parole period of 2 years was fixed.

3 The applicant sought leave to appeal against both conviction and sentence. His principal contention was that the two charges of which he was convicted - failing to stop and failing to assist - charged the same offence. While conceding that s 61(1) of the Road Safety Act 1986 ('RSA') imposed distinct legal obligations (to stop, and to render assistance), the applicant contended that the penalty provision (s 61(3)) created a single offence capable of being committed in different ways - by the driver failing to stop, or failing to assist, or failing to do either.

4 The alternative contention was that, even if the offences were separate, the applicant was punished twice for the same conduct. According to the written case:

There was a single act committed by the applicant. He left the scene of the collision. By leaving the scene, he both failed [to] immediately stop the motor vehicle and failed to immediately render such assistance as he could.

Having been convicted on charge 2, he was punished twice for the same act when he was convicted on charge 3.

5 For the reasons which follow, both contentions must be rejected. Decisions of this Court over almost two decades have consistently accepted that the provisions create two separate offences. No reason was suggested by counsel for the applicant for doubting the correctness of those decisions, save for a change in the language of s 61(3) when it was amended in 2005. In our view, the change of language was immaterial. Moreover, counsel was unable to explain why Parliament might have regarded it as desirable to convert two offences into one.

6 The alternative argument fails because the two offences are concerned with separate failures on the part of the driver - the failure to stop and the failure to render assistance - which are conceptually and legally distinct.

7 At about 3:00 am on 22 December 2018, the applicant was driving south along Yarra Street, Geelong. A 32-year-old male pedestrian ('T') was crossing Yarra Street after attending a Christmas party and was struck by the front passenger side of the applicant's vehicle. T was thrown 13.8 metres by the impact and came to rest in the vicinity of the gutter on the eastern side of Yarra Street. He suffered serious injuries and later died.

8 In evidence at the trial, the applicant said that he believed that a brick had been thrown at his vehicle. He braked but did not stop, continuing to drive along Yarra Street for almost two minutes. He then did a U-turn and drove back to the scene of the collision. His evidence was that he had returned to the scene to try to locate his side mirror, which had been knocked from the vehicle. He said that at no stage had he been aware that he had hit a pedestrian. At around 7.15 pm the following evening, the applicant surrendered himself to police after seeing social media posts regarding a hit and run incident.

9 CCTV footage captured the applicant's vehicle performing a U-turn after the impact and returning to the scene. He then did a further U-turn and stopped near where T was lying. He stayed there for a short while and then departed.

CHARGE 2: The Director of Public Prosecutions charges that Jamie Neskovski at South Geelong in Victoria on the 22nd day of December 2018 failed to immediately stop as the driver of a motor vehicle at the scene of an accident involving such motor vehicle in which a person was killed, which accident Jamie Neskovski as the driver of the motor vehicle knew or ought reasonably to have known had occurred and had resulted in a person being killed or suffering serious injury.

Statement of Offence - Failing to stop after a motor vehicle accident contrary to s 61(1)(a) and s 61(3) of the Road Safety Act 1986.

CHARGE 3: The Director of Public Prosecutions charges that Jamie Neskovski at South Geelong in Victoria on the 22nd day of December 2018 failed to immediately render such assistance as he could as the driver of a motor vehicle at the scene of an accident involving such motor vehicle in which a person was killed, which accident Jamie Neskovski as the driver of the motor vehicle knew or ought reasonably to have known had occurred and had resulted in a person being killed or suffering serious injury.

Statement of Offence - Failing to render assistance after a motor vehicle accident contrary to s 61(1)(b) and s 61(3) of the Road Safety Act 1986.

11 As in force at the time, the relevant provisions of s 61 of the RSA were as follows:

Duty of driver etc of motor vehicle if accident occurs

(1) If owing to the presence of a motor vehicle an accident occurs whereby any person is injured or any property (including any animal) is damaged or destroyed, the driver of the motor vehicle -

(a) must immediately stop the motor vehicle; and

(b) must immediately render such assistance as he or she can; and

(c) must at the scene of the accident as soon as possible give his or her name and address and also the name and address of the owner of the motor vehicle and the identifying number of the motor vehicle and, in the case of an automated vehicle, state whether it was operating in automated mode at the time of the accident -

(i) to any person who has been injured or to the owner of any property which has been damaged or destroyed; or

(ii) to a person representing the injured person or the owner of the property; and

(d) must at the scene of the accident as soon as possible give those names and addresses and the other information required under paragraph (c) to any police officer who is present; and

(e) if any person is injured and no police officer is present at the scene of the accident, must as soon as possible report in person full particulars of the accident at the police station that is most accessible from the scene of the accident if that station is open and, if it is not open, at the next most accessible station; and

(f) if any property is damaged or destroyed and neither the owner of the property nor any person representing the owner nor any police officer is present at the scene of the accident, must as soon as possible report in person full particulars of the accident at the police station that is most accessible from the scene of the accident if that station is open and, if it is not open, at the next most accessible station.

(a) as a result of an accident involving a motor vehicle a person is killed or suffers serious injury; and

(b) the driver of the motor vehicle knows or ought reasonably to have known that the accident had occurred and had resulted in a person being killed or suffering serious injury; and

(c) the driver of the motor vehicle does not comply with the requirements of paragraph (a) or (b) of subsection (1) in relation to the accident -

the driver is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum) or a level 5 fine (1200 penalty units maximum).

12 In relation to the elements of charges 2 and 3, the trial judge explained to the jury that these charges 'share the same first four elements'. Moving to the fifth elements of each charge, the trial judge directed the jury as follows:

And the fifth element [is] that the [applicant] did not, so far as Charge 2 is concerned, immediately stop the motor vehicle, and so far as Charge 3 is concerned, render such assistance as they could.

13 The trial judge told the jury that the first three elements across both charges were not in dispute, but the fourth element was in dispute. This element was expressed by the trial judge as follows:

[E]lement 4, that the [applicant] knew or ought reasonably to have known that an accident had occurred, which resulted in a person being killed or seriously injured. Now that element can be proven in either of two ways. The first way in which this element can be proven is by the prosecution proving that Mr Neskovski knew at the time that the accident in question had occurred, that his vehicle had struck a pedestrian, and that as a result of that the pedestrian had either suffered a serious injury or been killed. So this first limb is concerned with what Mr Neskovski's subjective state of knowledge at the relevant time was.

14 The trial judge directed that the element could also be proven by establishing that a person in Mr Neskovski's situation ought reasonably to have known that the accident had occurred.

15 With respect to the fifth element of each charge, the trial judge said:

[N]ow so far as the final element is concerned, regarding Charge No 2 of failing to stop, if you are satisfied of the existence of elements 1 through to 4, you must still be satisfied for Charge 2 that Mr Neskovski failed to stop his vehicle immediately. Now the duty which rests on the driver is to stop the vehicle immediately, not at some later stage, and a momentary halt is insufficient to satisfy the requirement to stop imposed. Here there is no dispute that Mr Neskovski took some one minute and 50 seconds to return, and this was after he had applied his brakes shortly after the impact. The obligation requires the driver to stop long enough to assess the situation. It is a question of fact for you whether you accept that Mr Neskovski stopped his vehicle immediately. The primary issue in regard to this charge however, of failing to stop, is whether or not Mr Neskovski knew or ought reasonably to have known of the collision in question.

Now so far as Charge 3 and the final element is concerned, there is no dispute that Mr Neskovski did not immediately render assistance as he could. The primary issue in regard to this charge is whether on the whole of the evidence you are satisfied that he knew or ought reasonably to have known of the accident in question.

16 At trial, the applicant was represented by senior counsel, who did not appear on this application. At no stage of the trial did defence counsel raise any question about the lawfulness of leaving to the jury the two charges (failure to stop and failure to assist). In accordance with the Jury Directions Act 2015, there was a discussion between the judge and counsel, before addresses commenced, about the directions to be given to the jury. Before the charge, there was a further discussion about a written direction which the trial judge proposed to give the jury. Although defence counsel raised one issue about the state of mind which had to be proved for the purposes of both charges, he raised no issue about there being separate charges. There were no exceptions to the judge's charge.

17 As noted earlier, counsel for the applicant accepted that s 61(1) of the RSA imposes two separate legal obligations. Given the language of the provision, the position could hardly be clearer. Where there is a motor vehicle accident resulting in injury or damage to property, s 61(1) requires that the driver:

(a) must immediately stop the motor vehicle; and

(b) must immediately render such assistance as he or she can;

...

18 The focus of the submission was on s 61(3), the text of which we again set out:

(a) as a result of an accident involving a motor vehicle a person is killed or suffers serious injury; and

(b) the driver of the motor vehicle knows or ought reasonably to have known that the accident had occurred and had resulted in a person being killed or suffering serious injury; and

(c) the driver of the motor vehicle does not comply with the requirements of paragraph (a) or (b) of subsection (1) in relation to the accident -

the driver is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum) or a level 5 fine (1200 penalty units maximum).

19 As can be seen, this provision is engaged if the accident has resulted in the death or serious injury of a person and the driver 'knows or ought reasonably to have known' that the accident has had that result. The driver commits the s 61(3) offence if, in those circumstances, he/she 'does not comply with the requirements of paragraph (a) or (b) of subsection (1) in relation to the accident'.

20 As the respondent's written case pointed out, it has never been doubted in Victoria that s 61(3) created two separate offences - the offence of failing to stop and the offence of failing to render assistance. As long ago as 2004, in R v Fairley,[1] the driver had been charged with failing to stop but not with failing to provide assistance. In an appeal against the sentence imposed for the offence of failing to stop, the driver contended that the sentencing judge had impermissibly treated his (uncharged) failure to assist as an aggravating factor. Eames JA said:

The requirement that a driver after an accident 'must immediately render such assistance as he or she can' is a discrete offence, created by s 61(1)(b), distinct from the offence created by s 61(1)(a) which imposes an obligation to 'immediately stop the motor vehicle'. Were the applicant to be sentenced, pursuant to s 61(1)(a), both for his failure to stop and also for his failure to render assistance then, arguably, error in principle would occur: see R v Newman and Turnbull.[2]

21 In 2010, in Pollard v The Queen,[3] a similar question arose. The driver had pleaded guilty to one charge of negligently causing serious injury and one of failing to render assistance. There was no charge of failing to stop but, on appeal against the sentence imposed for the negligently causing serious injury offence, the driver contended that the judge had impermissibly treated her failure to stop as an aggravating feature. That is, the judge had in effect punished her for an offence with which she was not charged.

22 Although the Court rejected that contention, it was accepted that:

[H]er conduct in failing to stop after the collision was both conceptually, and legally, separate from her having failed to render assistance. ... There is clearly a difference between not stopping, and failing to render assistance. These are separate offences under s 61(1)(a) and (b) of the Road Safety Act 1986. It goes without saying that a person may stop at the scene of an accident, but still fail to render assistance. The converse is also true.[4]

23 In 2018, in Vasilevski v The Queen,[5] the Court was dealing with a contention of double punishment in a case where the driver faced two charges of failing to stop after an accident which had resulted in the death of one person and serious injury to another. Relevantly, the Court said:

It is plain that the scheme of s 61 of the Road Safety Act 1986 is to provide for two separate offences, one concerned with failing to stop, and the other with failing to render assistance, after an accident where a person is either killed or suffers serious injury.[6]

24 Acknowledging the force of those authorities, counsel for the applicant nevertheless submitted that s 61(3) created a single offence, of failing to comply with the dual requirements imposed by paras (a) and (b) of s 61(1). According to the submission, the single offence was capable of being committed in three different ways, namely, when the driver:

• fails to stop;
• fails to render assistance; or
• fails to stop or render assistance.

25 Counsel drew an analogy with s 318(2) of the Crimes Act 1958, which creates the offence of causing death by culpable driving and provides that the offence may be committed in a number of different ways. That provision is in these terms:

(2) For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle -

(a) recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving; or

(b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; or

(c) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle; or

(d) whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.

26 Asked why this Court should depart from the clear line of authority identified, counsel advanced an argument which had not been foreshadowed in the written case. He drew attention to the fact that, until it was amended in 2005, the offence provision was expressed in the following terms:

If as a result of the accident a person is killed or suffers serious injury then a person who contravenes paragraph (a) or (b) of subsection (1) is guilty of an indictable offence...[7]

Following the amendment, which also increased the maximum penalty from 2 years to 10, the word 'contravenes' was replaced with the phrase 'does not comply with the requirements of'. This change was said to have made a 'conceptual qualitative difference' to the provision, such that what the Court in Fairley (pre-amendment) had correctly described as two separate offences had been converted into a single offence.

27 This contention is, in our view, without merit. First, as was pointed out during the hearing, in this context there is no difference in meaning between the word 'contravenes' and the phrase 'fails to comply with the requirements of'. The definition of 'contravene' is 'infringe' which is in turn defined to mean 'act contrary to; violate'.[8] If anything, the current phrase 'fails to comply with the requirements of' seems more suitable to the context, since sub-paras (a) and (b) do not contain prohibitions (which might be said to have been 'contravened') but rather impose positive obligations, in respect of which it makes perfect sense to speak of 'a failure to comply'.

28 Secondly, had Parliament intended to convert into one offence what the courts had recognised as two distinct offences, it is to be expected that the change would have been clearly signalled, both in the language of s 61(3) as amended and in the extrinsic materials. There is, of course, no such signal in the provision itself and counsel was not able to point to any extrinsic material suggesting that such a change had been intended.

29 Finally, we cannot conceive of a legislative rationale which would explain such a change. As counsel for the applicant acknowledged, these provisions are concerned with very serious criminal conduct, in a field of human activity which is of abiding concern to the community. Counsel's tentative suggestion that the consolidation of two offences into one might have served to emphasise the driver's obligation to comply with both obligations must also be rejected. It seems to us that, to the extent that the legislature wished to communicate that these were separate, serious obligations, the creation and maintenance of two separate offences was the best way to achieve that objective.

30 The alternative argument was that, even if they were separate offences, the applicant was punished twice for the same conduct. That is, the applicant's single act of continuing to drive after the accident was what constituted his two 'failures to comply' - the failure to stop and the failure to render assistance.

31 That contention is answered by what was said in Pollard about the conduct in failing to stop being 'both conceptually, and legally, distinct' from the conduct in failing to render assistance. There having been an accident of the relevant kind, the applicant was obliged by law to do both of those things. He did neither of them. His failure to stop was, as Pollard makes clear, quite different from his failure to render assistance. The separate charges attached to those separate failures. There is no overlap.

32 The applicant advanced a subsidiary complaint that the pleading of the two separate charges was a contravention of the applicable pleading rules. It was also said to be 'contrary to principle and long standing practice'. Reference was made to an earlier formulation of the charge which alleged that the applicant 'failed to immediately stop his motor vehicle and render such assistance as he could at the scene of an accident involving a motor vehicle'.

33 There is nothing in this point. As we have said, these were separate offences and it was entirely consistent with the requirements of criminal pleading that they be alleged separately.

34 Leave to appeal against conviction must therefore be refused.

35 Proposed ground 1 contends that the imposition of separate sentences on charges 2 and 3, and the order for cumulation on charge 2, involved double punishment. For the reasons we have given, that contention is unsustainable.

36 As the respondent points out, far from objecting to the imposition of separate sentences, senior counsel on the plea accepted that there would be a sentence on each charge, and expressly conceded that a degree of cumulation was warranted. His only submission was that such cumulation should be modest.

37 Proposed ground 2 contends that the judge erred in sentencing the applicant on the basis that he knew that the accident had occurred and had resulted in a person suffering serious injury.

As I have earlier said, the issue of your state of your mind is not spelt out by the jury's verdict. I am satisfied beyond reasonable doubt that you did have the requisite actual knowledge, at the point in time, when you left the accident scene, after having pulled your van over proximate to Mr Brookes' residence. I make this finding in light of the combined force and effect of the following evidence.

Firstly, the CCTV footage, which depicts the headlights of your vehicle, illuminating the parked car situated proximate to where road debris and Mr Travers were lying. This proximity is illustrated in photos in the Jury Book. This occurred as you were executing your U-turn to bring you back to the east side of Yarra Street, after you had returned to the impact scene.

The prosecutor contends that this manoeuvre would have seen your headlights move across the road debris and Mr Travers. Defence counsel argue that at the time at which you executed this U-turn, you were north of the parked car, and so what you could see is not necessarily Mr Travers, as he would have been shielded from your view by the bulk of the parked car. In the wash up, having viewed the CCTV footage a number of times, it is difficult to say precisely where your vehicle was at the time of the U-turn. Certainly the parked car is illuminated, but whether that is because you were opposite the car, or north of it, I cannot say. Whilst I think it probable that you did see Mr Travers, and that this informs your actions following on from this, acting on this evidence alone, I cannot be satisfied beyond reasonable doubt that you did see Mr Travers at this point in time.

Secondly, your conduct in remaining stationary in your vehicle, as it was parked on the east side of Yarra Street, close to where Mr Travers was lying.

Thirdly, your actions in switching off the lights of your van at this time, and a short time later driving off after reactivating your lights.

Fourthly, Mr Brookes' evidence, where he deposes to hearing what he took to be a male voice yelling out at the time your van was stationary by the eastern side of Yarra Street, and the independent support which this gives to that part of Charles' evidence, where he references that you told him that you could see somebody lying in the gutter and that when you stopped your car, you turned the headlights off and you called out to the person, saying that you could just hear moaning. That you then freaked out again and left the collision scene. I reject your evidence to the effect that you did not call out. ...

Fifthly, you gave evidence that you were returning to the scene to relocate your rear vision mirror, as you were concerned that your father would be upset at the damage caused to the family business's work van. Despite however, wishing to recover this item, and it could be expected, being vigilant to discover it, you stated in your evidence that you did not observe anything, neither debris on the road surface, nor Mr Travers lying prone. I reject this.

It is the combined force and effect of these items of evidence which lead me to be satisfied beyond reasonable doubt, that by the point in time that you drove off from the impact scene, after having been stationary in the vicinity of Mr Brookes' residence, that you knew that you had struck a pedestrian and seriously injured them.

Your conduct in coming to a halt and remaining for a time, with the lights of your vehicle cut, in conjunction with Mr Brookes and his observations serve to reinforce Charles' evidence, that by this stage you had actual knowledge of having struck Mr Travers. I am not satisfied beyond reasonable doubt, simply on the basis of Mr Charles' evidence, that you had the requisite knowledge at a point in time, prior to that, which I have just described.[9]

38 It is common ground that the guilty verdicts on charges 2 and 3 did not disclose whether the jury convicted him on the basis of actual knowledge (that the person had been seriously injured) or on the basis that he ought reasonably to have known that a person had been seriously injured. Nor was it in dispute on the plea that the judge was obliged to make a finding of fact as to what was the basis of the verdicts. The judge was aware, as the respondent points out, that he could only find actual knowledge on the applicant's part if he was satisfied of that fact beyond reasonable doubt.

39 In our respectful opinion, it was well open to the judge to make that finding of actual knowledge on the basis of the evidence to which he referred in his reasons.

[1] (2004) 40 MVR 403; [2004] VSCA 15 ('Fairley').

[3] [2010] VSCA 156 ('Pollard').

[4] Ibid [29] (Maxwell P and Weinberg JA) (citations omitted).

[5] (2018) 83 MVR 351; [2018] VSCA 7.

[7] Road Safety (Further Amendment) Act 2005 s 5(1) (emphasis added).

[8] The Australian Concise Oxford Dictionary (4th ed, 2004) 301, 718. See also Macquarie Dictionary (online at 6 May 2022): 'to violate, infringe or transgress'.

[9] DPP v Neskovski (Unreported, County Court of Victoria, Judge Meredith, 13 July 2021), [27]-[35].