Public Prosecutions Counsel for the Accused: R. Davies Solicitor for the Accused: Northern Territory

Legal Aid Commission ORDER The jury was instructed that they need consider only the evidence of the potential or actual danger to the occupants of the Sigma and to the passenger in the Falcon, or to any of them, when deciding whether "the public" was endangered. For all practical purposes those people will constitute "the public" for the purposes of s.154(1), in the circumstances of this case. JUDGE1 (The accused stood his trial on a charge under s.154(1) of the Criminal Code, which provides:- "(1) Any person who does or makes any act or omission that causes serious danger, actual or potential, to the lives, health or safety of the public or to any person (whether or not a member of the public) in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger and not have done or made that act or omission is guilty of a crime and is liable to imprisonment for 5 years." The words emphasised were added by Act No. 1 of 1991, which was assented to on 22 February 1991, but was deemed to have come into operation on 1 January 1984, the date of commencement of most of the Criminal Code; see Attorney-General v Wurrabadlumba (1990) 74 NTR 5. 2. The Crown alleged that the accused had accelerated his car so as to deliberately strike the rear of the car in front it was accepted that there were five people in the car in front and one passenger in his car. Mr Davies asked the Crown to identify the "public" alleged to have been endangered by the accused's driving and to particularise the danger relied on. Mr Wallace said that the Crown case was that the members of the public established to be present at the time (the six persons in the 2 vehicles) were placed in actual danger, while unidentified members of the public who were not in fact present but who could have been present were placed in potential danger. In amplifying the latter point Mr Wallace submitted that the words "the public" in s.154(1) included every person who could reasonably be anticipated to be in the vicinity of the act in question. He submitted that to establish a "danger

• • to the public" it is necessary only to show that the act caused a "potential" danger to an undefined group of hypothetical bystanders in the vicinity. He submitted that danger became "actual" when people were positively identified as being in the vicinity at the time of the act alleged.)

3. I will rule immediately upon the matters argued. The question for decision in general terms is as to the scope of the words "the public" in the phrase "serious danger - - - to the lives, health or safety of the public" in s.154(1) of the Criminal Code.
4. The Crown contends that the five occupants of the Sigma motor vehicle and the passenger in the Falcon vehicle driven by the accused, are all members of "the public" within the meaning of those words in s.154(1). There appears formerly to have been some conflict within the various State courts of Australia on the analogous question whether the passengers in a vehicle driven by a person charged with driving in a manner dangerous to the public, were members of "the public" for the purposes of that offence. That conflict was resolved some time ago; it is now clear that for the purposes of legislation of that type, passengers are members of "the public"; and clearly they are in this case. Further, they would each fall within the scope of "any person", as the amendment to s.154(1) effected by Act No. 1 of 1991, introducing the words "or to any person (whether or not a member of the public)", is retrospective to 1 January 1984. So the Crown is clearly correct in its contention.
5. Mr Wallace also submits that it is sufficient to show that the manner of driving of the accused constituted a potential danger to any member of the public who might reasonably have been anticipated to have been in the vicinity when the vehicle was driven in that manner. Presumably that submission carries with it the further submission that the Crown does not need to show that any member of the public was in fact in the vicinity at the time.
6. In resolving the question whether passengers in a vehicle driven in a dangerous manner were members of the public for the purpose of the offence of dangerous driving, some of the State courts considered the scope of "the public" in that context. In Burnside v The Queen [1962] VicRp 14; (1962) VR 96 at p 98, in summing up to a jury, Sholl J. said that it was sufficient if one member of the public was put in actual or potential danger. It would appear, although it is not certain, that his Honour considered that for the purposes of that offence, there had to be evidence that at least one member of the public had in fact by his presence been put in actual or potential danger. On the other hand, in R v Louks (1958) 119 CCC 236, a case of criminal negligence in the operation of a motor vehicle, the Supreme Court of Nova Scotia said that it was the probable rather than the actual result of an accused's driving which was relevant, and that the Crown did not have to establish that some person was on the road at the time. Doull J. said at p 237:- "The test (of criminal negligence in the operation of an automobile) is whether by his conduct the accused 'shows wanton or reckless disregard for the lives or safety of other persons'. This does not mean that some person must be hurt or that some person is in the road at that particular moment, but does mean that if the Judge (or jury) puts himself in the position of an onlooker as the driver passes by, considering the locus, the speed, the regulations or even the time of day, he can say that the driver shows (by his conduct) wanton or reckless disregard for the lives or safety of other persons. The moral quality involved is simply the wanton and reckless disregard for the lives or safety of persons who may in any way be involved. It is the probable, not the actual, results of accused's conduct which is to be considered." See to the same general effect the observations by Napier C.J. in Kelly v Walsh ; at p 483.