R v Bekhazi [2001] VSCA 178

R v Bekhazi [2001] VSCA 178 - VSCA 2001 case summary — Zoe

[21]

Mr. Shirrefs, who appeared in this Court on behalf of the appellant, directed most of his submissions towards ground 2. They were submissions which the appellant's counsel on the plea had not addressed to the sentencing judge. The submissions raise the vexing question of "double jeopardy". Counsel's contention was that the appellant's course of driving was the gravamen of both the culpable driving offence charged in count 1 and "the reckless endangerment of life" offence charged in count 2, and that once the judge had sentenced the appellant for the first offence, it was not open to him to convict or punish the appellant on count 2 for the same conduct. Counsel recognized that he could not now challenge the conviction on count 2 because the appellant had pleaded guilty and had since abandoned his appeal against conviction. He nevertheless submitted that the conviction and sentence on count 2 impermissibly exposed the appellant to "double jeopardy" because the offence alleged in that count was, in substance, founded upon the same conduct as the offence alleged in count 1[1]. The submission relied upon the peculiar characteristics of the offence described in s.22 of the Crimes Act which, upon counsel's argument, is not an offence against the person but rather is an offence aimed at proscribed conduct much in the same way as the offence of "driving in a manner dangerous to the public". In the circumstances of this case, he submitted, the conduct upon which the appellant had been convicted of the offence charged in count 2 was "totally subsumed" in the conduct for which he had been convicted and punished for the offence described in count 1. Further, counsel submitted that, for the judge to punish the appellant for the s.22 offence, was to punish him twice for the same acts or omissions contrary to s.51(1) of the Interpretation of Legislation Act 1984. In this regard, he submitted, the presentment in this case was significantly different from presentments alleging multiple counts of culpable driving, where two or more deaths have arisen out of the one course of driving; and presentments alleging a count of culpable driving combined with counts of recklessly or negligently causing serious injury to some other person arising out of the same course of driving. He contended that the counts on such presentments, which have been often tried and separately punished by courts in this and other States[2], invite punishment by reference to the "result" contemplated by the offence which is charged; and not by reference only to the conduct which is the essence of the offence. In contrast to these cases, Mr. Shirrefs submitted that the offence created by s.22 is an offence punishable by reference only to the conduct which it describes and does not require proof of any identifiable person who is a victim of that conduct. Because, in this case, the conduct relied upon by the Crown to prove the offence alleged in count 2 was the same - or substantially the same - conduct upon which it relied to prove the culpable driving alleged in count 1, the judge was, thus, not entitled to separately punish the appellant for the offence alleged in count 2 because, in doing so, he was punishing the appellant for the "same act or omission" contrary to the protection provided to the appellant by s.51 of the Interpretation of Legislation Act 1984 which, relevantly, provides that:

[23]

The submissions made on behalf of the appellant were attractively put, but they cannot, in my view, succeed. The offence charged in count 1 was an offence which depended for its proof upon evidence or admission of grossly negligent and/or drug induced driving causing the death of a particular person; whereas the offence charged in count 2 depended for its establishment upon evidence of reckless conduct which placed or may have placed different persons in danger of death. Each offence has, therefore, distinctly different elements and each is, in my opinion, an offence against the person. It is true that the offences were linked in time and place - at least in this case - by the same course of driving, but they were not offences constituted by the same acts or omissions resulting in harm to the same person. It follows that I cannot accept the appellant's submission that the offence created by s.22 of the Crimes Act is established simply by proof of a course of conduct as might be the offence of "driving in a manner dangerous to the public". Rather it requires the proof of reckless conduct which endangers the life of contemplated persons[3]. The fact that the danger contemplated by the section has not materialized seems to me, at least for these purposes, to be immaterial. In this sense, the charging and punishment of the appellants on counts 1 and 2 are, in my view, no different from charging an accused person with the offence of culpable driving causing the death of one person and the offence of negligently causing injury to another arising out of the same course of driving. Such offences, as I have said, have been regularly charged and punished in this State since R. v. Dean Williamson[4]. In that case the applicant had been convicted of a count of "culpable driving" causing the death of person A pursuant to s.318 of the Crimes Act and two counts of causing grievous bodily injury to victims B and C by negligent driving. It was contended on behalf of the applicant that the sentencing judge had been in error in separately punishing the applicant for the latter two offences because the episode of driving "constituted one incident", and that there was only "one act or omission which had brought about the several results". The Court rejected the argument. Pape, J., who delivered the principal judgment of the Court said (at p.7):

[26]

Notwithstanding the consistency of approach taken by the courts in the authorities to which I have referred, Mr. Shirrefs submitted that, in the particular circumstances of this case, the judge should not have punished the appellant for the offence charged in count 2 because he was, in effect, punishing the appellant more than once for "the same act or omission" contrary to s.51(1) of the Interpretation of Legislation Act 1984, the proper construction of which, so counsel submits, has received little attention by this Court or its predecessor in sentencing appeals since its introduction in 1984. Counsel submitted that, because the offences charged in counts 1 and 2 were founded upon the same fleeting course of driving which carried the appellant's vehicle into the intersection of Speight Street and Victoria Road, he was being "doubly punished" for the same acts or omissions in contravention of s.51(1). Counsel sought to assimilate the circumstances of this case to those which existed in R. v. Sessions[6]. However, in my view, the two cases cannot be compared. In Sessions, the accused had pleaded guilty to a presentment containing one count of rape (digital) and one count of recklessly causing serious injury. The two counts derived from the one course of conduct in which the accused had thrust his finger into the vagina of a young female victim with such force that he had caused internal damage to the victim. The trial judge had accepted the pleas of guilty to the two counts on the basis that the rape was constituted by the initial penetration and the reckless causing of serious injury was constituted by the deeper penetration resulting in the internal damage. The Court quashed the verdict on count 2 on the basis that, in the circumstances, it was unrealistic to regard the conduct as other than the one course of conduct towards the same victim; that it amounted to a "rape"; and that the judge was entitled, in sentencing for the "rape", to take into account the consequences to the victim. Thus, to convict and punish the applicant twice for the same act was to infringe the principles of "double jeopardy". Having referred to R. v. Hoar[7] (a case where it was decided that an accused who had been convicted and punished for conspiracy, could not thereafter be convicted and punished for a substantive offence comprising an overt act of the conspiracy), Hayne, J.A. said at 315):

[32]

I accept that the provisions of s.51(1) of the 1984 legislation are significantly different from the provisions of s.28 of the 1958 legislation. The latter provisions were intended to embody the common law principles which were focussed on autrefois convict. In other words, a person was not liable to be punished twice for the same offence[9]. The provisions of s.51 of the 1984 legislation contemplate that a person is not liable to be punished more than once for "the same act or omission" constituting more than one offence. However these provisions will not avail the appellant in this case if, as I think, the acts or omissions constituting the offence under s.22 of the Crimes Act are not the "same acts or omissions" constituting the offence under s.318 of that Act. It is clear that the "acts or omissions" referred to in s.51 are not to be equated with the elements or ingredients of the offences which they comprise. Rather, they are the constituent acts or omissions which must be established to prove the relevant offence. It is not sufficient to establish either the offence prescribed by s.318 of the Crimes Act or the offence prescribed by s.22 of that Act to merely prove a course of driving which can be described either as "grossly negligent" or "reckless". In my view, the constituent "acts or omissions", essential for the proof of the respective offences, will necessarily include the consequences (namely death or danger of death) which the sections contemplate must flow to the victims of the offences created. In Phillips v. Carbone (No.2)[10], a similar view was taken by the Court of Criminal Appeal (WA) of s.16 of that State's Criminal Code which, in relevant respects, is cast in the same form as s.51 of the Interpretation of Legislation Act 1984 (Vic). That was a case where the question was whether an offender, whose dangerous driving results in an accident causing bodily harm to two persons, can be punished twice. The question involved consideration of whether, in those circumstances, the offender was being punished twice for the "same act or omission". The Court found that he was not entitled to the protection afforded by s.16 of the Code because he was not being doubly punished for the same act or omission. The members of the Court were not entirely ad idem as to the meaning of the words "same act or omission" which constituted more than one offence. Pidgeon, A.C.J. (at 175-6) was of the view that the words focussed on "the thing done" as distinct from "the means of doing it" and that, as the offences charged against the accused were offences of "causing bodily harm to another person by driving a motor vehicle in a manner ... dangerous to the public ...", the "thing done" was the causing of bodily harm to another person and the driving was the means of doing it. Similar views were expressed by Nicholson, J. (see pp.181-2). Ipp, J. expressed the view that "an act or omission constitutes more than one offence only if the evidence necessary to support the later charges would have been sufficient to procure a legal conviction on the first charge"; and that because, on the second charge, the identity of the person injured was different, that test could not be fulfilled (p.190). It was his Honour's view, therefore, that s.16 was not intended to "give protection to a person who, by one physical act or omission causes multiple harm to different persons or things". In Sessions (supra at 311-2), Hayne, J.A. referred to the views expressed by the Court in Phillips v. Carbone (No.2) when considering the effect of s.51 of the Interpretation of Legislation Act 1984 (Vic) and the impact of the changes made by that section to its predecessor in the 1958 Act. It was unnecessary for his Honour to resolve what was meant by the words "act or omission constituting more than one offence" because it was clear that, in the case before him, the charging and convicting of Sessions of the two offences arising out of the same conduct perpetrated against the same victim offended against the common law principles of "double jeopardy". Eames, A.J.A. (at 323-4) expressed similar views.

[33]

It is apparent from what I have already said that my view of the appropriate interpretation of s.51 of the Interpretation of Legislation Act 1984 (Vic.) closely conforms to the view expressed by Ipp, J. in Phillips v. Carbone (No.2), supra, as to the proper interpretation of s.16 of the Criminal Code (W.A.). For the reasons to which I have adverted in [13], I am satisfied that the judge in this case was, consistently with s.51 of the 1984 Act, entitled to punish the appellant for each of the offences to which he pleaded guilty. The offences described by ss. 22 and 318 of the Crimes Act are different, not only in their elements, but also in the acts or omissions which constitute them. Each contemplates "harm" flowing to identifiable "victims". In other words, they are not the same offence either in law or in fact[11] and, accordingly, to punish the appellant for each of them does not infringe the protection afforded by s.51 merely because each offence derives from a common course of driving. So far as I am aware, it has never been doubted that, if the act of detonating a bomb kills or injures multiple victims, the accused can be charged with and punished for as many offences as there are victims[12]. Likewise, if a course of driving a motor vehicle causes the death of one person and endangers the life of another, the fact of the death of one victim and the endangerment of the life of the other must be part of the relevant "acts or omissions" constituting the separate "laws" because the consequences cannot be divorced from the separate obligation owed by the accused to the separate victims[13]. In the eyes of the criminal law, it is the existence of the separate obligations owed to the several victims of the one criminal act which, in part, defines the acts or omissions constituting the different offences arising from that act. It is that concept which, I think, underlies the "fundamental distinction", referred to by Ipp, J. in Phillips v. Carbone (No.2), supra at 190, between a single act that contravenes more than one "law", and a single act that harms more than one person. The rationale for that distinction has been eloquently described in the reasons given by Vincent, J.A. in his judgment in this appeal, which reasons I have had the advantage of reading and with which I agree.

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Judgment (63 paragraphs)

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