R v Ashley [1991] NTSC 19; 1 NTLR 81; 77 NTR 27; 104 FLR 431 (21 August 1991)
[2]
COURT
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
Kearney J.(1)
CWDS
Criminal Law - Manner of driving on highway
as constituting act dangerous to
the public - whether "the public" embraces persons who could have been present
as well as persons
actually present - Criminal Code (NT), s.154(1).
Criminal Law - Dangerous act - whether passengers in car struck by accused's
car
constitute members of the "the public" - Criminal Code (NT), s.154(1).
Criminal Law - Statutory interpretation - meaning of "the
public" -
Criminal Code (NT), s.154(1).
Evidence - Criminal law - whether evidence required to establish the "the
public" endangered
by act - Criminal Code (NT), s.154(1).
Statutory Interpretation - Meaning of "the public" - Criminal Code (NT),
s.154(1).
Words
and Phrases - meaning of "the public" in the phrase "...serious danger
... to the lives, health or safety of the public" - Criminal
Code (NT) 1983.
Cases referred to
Burnside v The Queen [1962] VicRp 14; (1962) VR 96
Kelly v Walsh [1929] SAStRp 47;
McBride v The Queen ;
R v Coggins (unreported, Federal Court (FC), 26
September 1985)
R v Coventry ;
R v Louks
R v Smith ;
Attorney-General v Wurrabadlumba (1990) 74 NTR 5
HRNG
ALICE SPRINGS
#DATE 21:8:1991
Counsel for the Crown: R. Wallace
Solicitor for the Crown: Director of
Public Prosecutions
Counsel for the Accused: R. Davies
Solicitor for the Accused: Northern Territory
[4]
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.)
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.
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.
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.
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.
It is, I think, very clear that in the present context, where the alleged
dangerous act involves the manner of driving
of a motor vehicle on a highway,
a very common application in practice of s.154(1) of the Criminal Code, the
words "the public" embrace
pedestrians and others actually in the vicinity of
the act at the time, as well as passengers and drivers in motor vehicles in
that
vicinity. Does the scope of "the public" extend beyond these persons?
The general purpose of s.154(1) is the punishment of those
persons who, by
their acts, endanger others. The wording shows that to be punishable, the act
in question must have caused "serious
danger, actual or potential, to the
lives, health or safety of the public", or a member of the public, or any
other person. Does
this mean that the Crown must show that at least one
identified member of the public in fact, by his presence, faced serious actual
danger or serious potential danger from the act in question? Or is it
unnecessary to establish that in fact some particular person
was so
endangered, as appears to have been the view indicated, for example, in R v
Louks (supra)?
There is nothing in s.154(1)
to correspond to the usual provision in
dangerous driving legislation whereby explicit criteria determine when the
driving is dangerous
to the public. From the nature of those criteria it is
clear that it is not necessary in such cases to show that any particular
person was in fact endangered, the term "the public" embracing both actual
users of the road and potential users of the road. In
those circumstances, as
Burbury C.J. said in R v Smith [1969] TASStRp 24; (1969) Tas SR 159 at 163:
"The "public" endangered by the speed or manner of
his driving and therefore protected by the statute, is
therefore
not to be regarded as a number of particular
individuals endangered, but as an innominate class. It
is the section of the
community as an aggregate shown
to be actually or potentially within the ambit of
danger created by the speed or manner of
driving. The
section is not concerned with breach of duty to drive
carefully vis-a-vis a particular person. This of
course
is not to say that evidence that particular
persons were in fact endangered is not admissible and
cogent evidence to establish
that the innominate class
which the statute contemplates was endangered."
(emphasis mine).
To the same general effect is the
observation by Starke J. in R v Coventry
[1938] HCA 31; (1938) 59 CLR 633 at p 639, where his Honour indicated one relevant
non-statutory factor as:
"The nature of the traffic which might be expected
on the road."
Mr Wallace has also referred me to the analysis to similar effect, though
dicta, by Barwick C.J. in McBride
v The Queen [1966] HCA 22; (1967) 115 CLR 44 at pp 49 and
50, dealing with the offence of dangerous driving causing death. His Honour
stressed that the act in question in that
charge - some serious breach of the
proper conduct of the vehicle on the road - must be so serious as to be, in
reality and not speculatively,
potentially dangerous to others.
The meaning to be given to "the public" in s.154(1) is not
straightforward. However, I consider
that the approach outlined by Burbury
C.J. in R v Smith (supra) and by Barwick C.J. in McBride v The Queen, (supra)
applies when
considering the proper connotation of "the public" in s.154(1).
That is, the "public" in s.154(1) includes all persons who would
have been
clearly foreseen by an ordinary person, in similar circumstances to the
accused, to have been within the ambit of the danger
created by the alleged
act, because their presence in the vicinity at that time might be reasonably
anticipated. This would normally
require some evidentiary material being
placed by the Crown before the jury which would relate, amongst other things,
to what was
going on in the vicinity of the alleged dangerous act at the time.
As to the point that evidence is necessary to establish the
potential
danger to "the public", I note the observations by Fox J. in Coggins v The
Queen, (unreported, Full Court of the Federal
Court, 26 September 1985).
In that case there was a plea of guilty to a charge under s.154(1),
involving setting fire to a caravan.
It was admitted that a gas cylinder was
attached to the van. On the element of serious potential danger, the
prosecutor contended
that if the cylinder had exploded, it would have
endangered persons in the vicinity. Fox J. noted that there was no evidence
that
anyone was in the vicinity, but observed that:-
"- - it may have been possible to infer, provided a
proper basis of information
existed, that there were
some who were potentially in danger."
His Honour did not consider that a serious danger "was manifestly
obvious from
the stated facts."
In the present case the Crown alleges that there are five persons in the
Sigma as well as the
passenger in the Falcon who clearly were members of "the
public" and who would have been actually endangered by the act alleged,
committed in their presence. The concluding remarks by Burbury C.J. R v Smith
(supra), emphasised above, apply to this case. That
is to say, in my opinion
it is sufficient for the jury to be instructed to consider the situation of
these six identified people,
or any of them, when considering whether "the
public" was endangered. And indeed that will usually be the situation in
practice,
in cases brought under s.154(1). It is along those lines that I
propose to instruct the jury on the question of "the public", raised
by Mr
Wallace. That is to say, I will instruct the jury 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.