R v De'Zilwa [2002] VSCA 158

Court of Appeal (Vic)|2002-08-21|Before: ORMISTON and CHARLES, JJ.A. and O'BRYAN, A.J.A.

CRIMINAL LAW - Conviction - Culpable driving causing death - Gross negligence - Directions to jury - Failure to relate law to facts of case - Failure to put defence case - Evidence of applicant's state of undress when driving - Failure to warn jury against misuse of such evidence - Criticism of defence counsel's address - Whether charge fair and balanced - Crimes Act 1958 s.318(2)(b).

In particular I agree explicitly with what he proposes as to the manner in which juries should hereafter be charged on counts of causing death by culpable driving when that count is based on driving "negligently", pursuant to para.(b) of s.318(2) of the Crimes Act 1958 ("the Act").[1] What there appears ought to be stated by way of explanation of the words appearing in that paragraph which in the ordinary course will have been read to the jury. What the learned judge said about the word "gross" was an improper direction to the extent only that, finally, in answer to a specific question from the jury, he tempered its express meaning by using the expression "a significant departure", as explained by Charles, J.A.[2], but otherwise what the learned judge said, in effect by not earlier explaining or expanding upon the word "gross", was in conformity with existing authority.[3] There would not have been a failure properly to direct the jury by reason of that wanted explanation; it is only that we now think that it is preferable and conducive to a better understanding of the meaning of paragraph (b) for judges in future to be not merely free, but ordinarily under an obligation, to give the proposed direction.

Moreover I agree with the need to explain the meaning of the word "gross" in the context of paragraph (b) because it is likewise my experience that juries frequently have asked for an explanation of the meaning of the word "gross", in that it seems that it is not a word now in common use except in its vernacular and imprecise sense. Ordinarily this Court ought not to change what in substance is an accepted direction which has been laid down by the highest court in this State, indeed here laid down on a number of occasions, unless the rationale behind those authorities no longer obtains. Nevertheless, if a charge uses language or even a single word which is not generally understood by a large number of potential jurors, then, in my opinion, it is not improper to refuse to follow those earlier authorities founded on that rationale, so long as what is substituted does not offend against either principle or, as in the present case, a proper understanding of the language used in the section.

The greatest defect in this charge, however, was the almost complete failure both to summarise the evidence and counsel's arguments and to relate the facts and issues raised by counsel to the actual charges. It seems to be becoming increasingly frequent for judges in the County Court not to summarise the evidence, usually on the ground that the trial has been short and that the jury would therefore remember all that had been given in evidence. The present trial in fact took some six sitting days so that some of the evidence was given a week before the judge concluded his address to the jury. One should not assume that what a trained and experienced lawyer can recollect will be invariably the same as each member of the jury, without the same or any similar training, can recollect at the end of a trial. Even if that might be excused, as it might fairly be excused in, say, a two-day trial, there was no excuse for failing to relate sufficient of the evidence and sufficient of counsel's arguments to the jury so as to enable them to determine the issues in question, namely whether the evidence as a whole could satisfy them beyond reasonable doubt of each of the elements of the charge (or at least of those elements which were in contention), and about those matters which might otherwise be relevant to determining the guilt of the applicant on each count.

By this I should not be taken as encouraging long-winded or elaborate charges to juries: far from it. But each charge must satisfy the principles laid down in Alford v. Magee[4] which, taken from a judgment of Sir Leo Cussen in a criminal case, were there held also to be applicable to civil jury trials, but which in turn have been said to be applicable to the proper conduct of criminal trials on at least six occasions in the last ten years by members of the High Court.[5] As was succinctly stated by the Court in Chai[6], "the law should be explained to the jury in a manner which relates it to the facts of the particular case and the issues to be decided". That was not done here, nor, I regret to say, was it seriously attempted.

I emphasise these deficiencies, for I would not otherwise have treated the manner in which the judge dealt with the defects in counsel's behaviour at the trial as amounting to a misdirection. I agree, nevertheless, with Charles, J.A. that the end result was unduly harsh in its effect on the applicant's case, but that this came about, without doubt, because there was no adequate summary of the way in which the applicant's case was put at the trial. If that had been fairly and fully done, whether by general summary of counsel's address on the merits or whether by detailed exposition of how the applicant contended through her counsel that the prosecution case had not been made out (or both), then that imbalance would almost inevitably have evaporated, for on the other side there would be at the least some fair statement of what the accused's answer to the prosecution case was. In its absence there was yet another basis for setting aside these verdicts.

As to the unfortunate reference by counsel to penalty, I likewise agree with what Charles, J.A. has said. I would note, moreover, what was said in one of the leading cases on the subject, albeit reported only as a current note to the Argus Law Reports, namely R. v. Neal[7]. There Dixon, J. said[8], in the course of a criminal trial in the original jurisdiction of the High Court, that "I would be prepared to concede that counsel are at liberty to tell the jury that their client faces an extremely serious charge, of which the law took a serious view, and it was incumbent upon them to be perfectly certain because of the penalty and because of the consequences. But I do

not think it is the practice for counsel to state the penalty prescribed." Later in his charge to the jury Dixon, J. said[9], in criticising counsel for referring to penalty:

"The punishment to which the accused might be exposed is a question which can have nothing whatever to do with the question of whether they did or did not [commit the offence]. It is rather a pity to allow such irrelevancies to get into a case ...".

Finally, in addition to what Charles, J.A. says about the desirability of entering a verdict of acquittal, this was as weak a case of causing death by culpable driving as one might see, and it was not the kind of case which I would describe as "a species of involuntary manslaughter".[10]

These are the reasons which led me to making the orders on the occasion when the matter was last before the Court which resulted in the appeal being allowed and verdicts of acquittal entered.

The applicant, who was born on 10 February 1979, was arrested and charged by police on 2 April 2001 with two offences, causing death by culpable driving and causing serious injury by negligently driving a motor vehicle, both offences alleged to arise from a single incident on 2 April 2000. On 24 July 2001, the matter proceeded by way of a contested committal at the Geelong Magistrate's Court, and the applicant was duly committed to stand trial on both counts.

On 14 March 2002 the applicant's trial proceeded in the County Court at Geelong, the applicant having pleaded not guilty. After a trial lasting a week, the jury returned a verdict of guilty on both counts. A plea was heard on 25 March and on 9 April the applicant was sentenced on the count of culpable driving to three years' imprisonment and on the count of negligently causing serious injury to one year's imprisonment. The total effective sentence was three years' imprisonment and the judge fixed a non-parole period of six months. The applicant's licence was cancelled and she was disqualified from obtaining a licence for three years.

On 16 April the applicant applied for leave to appeal against conviction and on 8 May the Director of Public Prosecutions filed a notice of appeal against sentence.

The appeals came on for hearing before this Court on Wednesday 21 August 2002. At the conclusion of the hearing on that day, the Court ordered that the applicant's appeal against conviction be allowed and that her conviction on both counts be quashed, and directed that in lieu thereof verdicts of acquittal be entered. The following are my reasons for joining in the making of these orders.

At the trial the case for the prosecution was as follows. Near Balliang, the Geelong-Bacchus Marsh Road crosses the Little River-Ripley Road. The intersection is a standard cross intersection but the Geelong-Bacchus Marsh Road is the major of the two, and vehicles travelling along the Little River-Ripley Road are required to give way to traffic on the other road. For traffic travelling in a westerly direction along the Little River-Ripley Road there are three traffic advisory signs before the intersection. The first warning sign, a black cross on a yellow background, is placed some 122 metres east of the intersection. A second sign, 45 metres from the intersection, shows that vehicles on the major road are travelling towards Bacchus Marsh to the right and to Lara and Geelong to the left. There is also a give way sign erected in the immediate vicinity of the intersection itself applicable to all vehicles travelling west along the Little River-Ripley Road. There is no lighting at or above the intersection. Both roads have two lanes, with a bitumen surface in good condition and white lines marking the centre of the road surface. The applicable speed limit on both roads at the relevant time was 100kph. A vehicle approaching the intersection from the east along the Little River-Ripley Road has a relatively clear line of vision in relation to vehicles travelling on the Geelong-Bacchus Marsh Road for at least one kilometre in either direction, there being no significant obstructions.

On Sunday 2 April 2000 at 7.40 p.m., Robin Bodilly was driving his Ford utility in a northerly direction along the Geelong-Bacchus Marsh Road. Seated beside him in the front seat was his brother, Glenn Bodilly. The applicant was driving a Holden Statesman sedan in a westerly direction along the Little River-Ripley Road. Seated beside her in the front seat was Aaron Wroblewski, her then boyfriend. The traffic was light and the road was dry. At the time atmospheric conditions were clear with vision being good. The sun had set, but it was dusk. Both vehicles had their headlights operating. Robin Bodilly's utility was towing a boat trailer.

The two vehicles reached the intersection simultaneously. The applicant failed to give way and collided with the driver's side of the Ford utility, the impact forcing the Ford and boat trailer to move off their line of travel to the west. Both vehicles suffered major impact damage. Robin Bodilly was fatally injured and died at the scene, and his brother Glenn received serious injuries including broken ribs, and internal and external bruising. Wroblewski was thrown from the applicant's car and both he and the applicant suffered minor injuries.

Evidence was given for the prosecution by a number of witnesses who arrived at the scene of the accident shortly after it happened. Witnesses gave evidence of seeing the applicant leave the Statesman, naked from the waist down. She was seen to take tracksuit pants from the rear of the vehicle and attempt to put them on, in which she had to be assisted. Her underwear was in the rear seat of the vehicle. In a brief conversation with two of the witnesses, the applicant said she hit some gravel and could not stop but had tried to slow down. Wroblewski said that he was asleep at the time of the collision and did not know what happened. The applicant admitted that she had been driving the vehicle at a fast speed. Senior Constable Davis arrived at the scene shortly after the collision, and in a conversation with him the applicant at first denied being the driver of the vehicle. Senior Constable Colin McKenzie, an expert in collision reconstruction, gave evidence estimating that the car driven by the applicant was travelling at 92kph. immediately prior to the point of impact and the vehicle driven by the victim was travelling at 74kph. No faults were located by mechanical inspection of either vehicle. No slide or skid marks were found prior to the accident but Senior Constable McKenzie agreed in evidence that it was possible for no markings to be left on the roadway even after breaking.

The applicant and Wroblewski both gave evidence in the trial. The applicant said that she and her boyfriend had been visiting Melbourne when they decided to travel back to Anakie. On the way to Anakie they stopped outside Werribee and had sexual relations in the back of the car. Wroblewski said that he was tired and asked the applicant to continue driving the vehicle. He also asked her to drive naked. The applicant was anxious to impress her boyfriend and reluctantly agreed, but remained wearing a T-shirt. She said that her partial nakedness did not affect her ability to drive the car. The applicant said that as the car approached the intersection it was dark. It was a stretch of road she had never travelled before. She said that she was driving under the speed limit, in the vicinity of 80-90kph. She said she was alert and was being cautious. Wroblewski had fallen asleep. The applicant said she approached the intersection at a speed of approximately 90kph. She said that she was fiddling with the car radio as she could not locate the station she wanted, and admitted that this was a distraction to her driving since she was unfamiliar with the controls for the radio, which were located on the steering wheel. The applicant said she did not observe any of the advisory traffic signs prior to the intersection and did not know why she missed the signs. She later conceded that she did observe the sign indicating the turn-off to Bacchus Marsh and to Lara and Geelong and then saw the give way sign and the deceased's vehicle. She realised she was going to collide and braked the vehicle. She said she had not observed the headlights of the deceased's vehicle whilst she had been approaching the intersection. After the impact she said she began screaming out for her boyfriend. She admitted lying to the police initially as to who was driving the vehicle. Wroblewski said in evidence that there was no further sexual contact with the applicant once the vehicle resumed its journey from Werribee, and that he had fallen asleep before they reached the intersection.

Before the prosecution commenced its case, it was necessary to deal with a number of preliminary matters. The applicant had said to two witnesses who arrived at the scene of the accident, in answer to the question what happened, that "I was driving, I tried to brake, I hit the gravel and couldn't control it, it was too late". The judge ruled that the reliability of what had been said by the applicant to these witnesses immediately after the accident was a matter for the jury and ruled that the evidence was admissible. Secondly, a question arose as to certain admissions made by the applicant to two police officers who arrived at the scene of the accident. The applicant was cautioned and then agreed that she was naked below the waist at the time of the accident saying "because he was giving me a head job", meaning by that that her boyfriend was "performing oral sex on me". The conversation had not however been tape recorded and was not adopted by the applicant at any later stage. Prosecuting counsel said to the judge that, having regard to the provisions of s.464H of the Crimes Act 1958, in the absence of a record of interview and later adoption by the applicant of the statements, he did not propose to lead that part of the conversation with the police officers, and the judge was therefore not required to rule on the exclusion of this evidence. Thirdly, the applicant's counsel sought the exclusion of the evidence of civilian witnesses that they had seen the applicant leaving the car half-naked at the scene of the collision. Counsel argued that the evidence was highly prejudicial because the jury would be invited to speculate as to why the applicant was naked from the waist down and submitted that it was not the Crown case that sexual activity took place at the time of the collision or that the applicant's inattention resulted from sexual activity prior to the collision. The prosecutor on the other hand argued that the Crown could not be shut out from leading the evidence as it might be directly relevant to the circumstances surrounding the commission of the offence at a later stage, indicating that if Wroblewski or the applicant were to give evidence he would be entitled to cross-examine either of them in relation to the matter. The judge ruled that the evidence was admissible, saying that there might need to be a specific direction about it during the charge.

The Crown case in relation to culpable driving

The applicant and Wroblewski were both cross-examined as to whether any sexual activity was taking place between them immediately prior to the accident. Both, however, denied that this was the case, and both said that Wroblewski was asleep at the time of the accident. Having heard their evidence, the judge, in discussion with counsel before charging the jury, said that he accepted the applicant and Wroblewski as witnesses of truth. Accordingly, the Crown case as put to the jury was that the accident had been caused by inattention on the part of the applicant, a failure to keep a proper lookout. It was the prosecution case that she was travelling in a powerful car at night and unfamiliar with the car or the road itself. The applicant had no appreciation that the intersection was coming. Accordingly the prosecutor submitted to the jury that she was plainly guilty of inattention and that, even though she was travelling at a speed below the speed limit, if unfamiliar with the road one was obliged to keep the speed down further. For some reason she had failed to see the signs and her attention had been distracted. She had no shoes which was itself a distraction. She was flicking the dials on the car radio which was an indication of inattention and her state of undress was something which might further have distracted her.

Defence counsel's address to the jury led to a number of vigorous criticisms both from the prosecutor and the judge. In the first place counsel said to the jury that "culpable driving attracts a maximum sentence of many, many years imprisonment." Now it is well established that counsel in criminal cases should not inform the jury of the penalty prescribed for the offence; see R. v. Neal[11]; Attorney-General for the State of South Australia v. Brown[12]. The matter was addressed very clearly in the Court of Criminal Appeal of South Australia in R. v. Costi[13], by King, C.J. who said -

"In the summing up the learned trial judge attributed to counsel for the defence a reference in his address to the jury to the maximum penalty for the offence charged. The text of counsel's address to the jury was not before this Court and I am therefore not in a position to verify the attribution. If counsel referred to the penalty, he was not entitled to do so. It is improper for counsel to refer in the presence of the jury to the maximum penalty prescribed by law for the offence charged or to make any other reference to penalty. This is a well-established rule of practice and observance of it must be insisted upon. If counsel improperly refers to penalty in the course of an address to the jury, it is the duty of the trial judge to intervene immediately in order to stop counsel and to remind the jury that they are not concerned with penalty. The reference to penalty by counsel called forth a reference to penalty in the summing up which was undesirable but was probably rendered inevitable by what counsel had said."

Next, defence counsel was understandably very concerned that the evidence that the applicant had been naked from the waist down was highly prejudicial and might well lead the jury to conclude that some sexual contact was taking place between the applicant and Wroblewski immediately before the accident. Counsel sought in the address to minimise such prejudice. Unfortunately this led counsel to put to the jury that it was because Wroblewski had dared the applicant to drive naked and the fact that she had been found half-naked at the scene of the accident that had led the police to charge the applicant with culpable driving and then continued -

"So the police in my submission to you have jumped in head-first and in the absence of evidence connecting the lack of clothing to the causation of the accident, they charged her. Now, but if they really believed that there was some sexual behaviour that was going on prior to this intersection, why didn't they charge Aaron Wroblewski as an accomplice?"

Later, counsel put it to the jury that if there was any evidence that any sort of sexual activity leading up to that intersection had distracted her, why was the applicant in the dock and Aaron Wroblewski in the witness box?

The prosecutor's objection that counsel should not have mentioned the penalty to the jury was immediately accepted by the judge. But a second and more serious objection was taken to the passage in counsel's address in which it had been suggested that the police had no evidence connecting the applicant's semi-nakedness with the accident and that it was only her state of undress that had led to her being charged. Not only was there no basis for these suggestions - none of the police officers who gave evidence had been cross-examined on these questions - but also there was indeed the evidence of the conversations between the applicant and the police officers at the scene which had been excluded from the evidence before the jury. The remarks made by defence counsel were irrelevant and unfair to the police, and should not have been made. They at once raised the question whether it had become necessary to discharge the jury. Furthermore, the judge was understandably concerned that these and other passages in counsel's address had effectively focused the jury's attention on what the applicant and Wroblewski were doing sexually in the last moments before the collision.

The judge then adjourned the trial to consider whether it had become necessary to discharge the jury. A copy of defence counsel's address was obtained and the judge gave careful thought to how the position might be rectified. His Honour prepared and discussed with counsel various passages for inclusion in the charge. In hindsight, however, it may well be that the jury should have been discharged at this stage of the trial.

His Honour told the jury that the question of possible penalties should not have been raised before them, was entirely irrelevant and could only have been mentioned to appeal to their emotions. The judge then turned to the second set of submissions to which objection had been taken, and described them as "patent nonsense", "quite wrong" and involving an improper suggestion that what the police thought was relevant and said that these matters should be put out of their minds entirely. The judge repeated that counsel's submissions as to why the applicant was in the dock and not Wroblewski made "no sense at all" and were nonsense. His Honour continued -

"This, like all criminal trials, must be decided upon the evidence presented to you and any inferences which may legitimately be drawn from that evidence. It cannot, must never be decided on hypothetical speculation. It must not be decided - this case must not be decided or even influenced by wild, improper, nonsensical or inflammatory statements or suggestions made by counsel. The undisputed evidence in this case, before you, is that as the car approached the intersection Ms De'Zilwa was naked because of a dare made earlier with her passenger and that the passenger was asleep. That is that."

In what followed the judge did not endeavour to summarise the case put either by the applicant or the Crown, nor did he attempt then to apply the law to the facts of the case. It is ordinarily the judge's duty to assist the jury thus and to tell them in so doing what are the real issues raised in the case; cf. R. v. Wilkes and Briant[14]; R. v. Anderson[15]; Alford v. Magee[16]. The judge said that it seemed unnecessary to summarise each case, and I have no doubt that his Honour was influenced in the course he took by a concern not to increase the risk that the jury's attention would be drawn to the applicant's semi-naked state and a like apprehension that the jury would speculate as to whether the two were engaged in sexual conduct before the accident. But it seems to me, with respect, that these matters made it all the more necessary that the respective cases should have been properly put and explained to the jury, and the jury's attention thus focused on the real issues. If this were all, and the charge had been otherwise satisfactory, a miscarriage of justice might well have been avoided. In the circumstances of this case, however, the charge was, with great respect, so inadequate in putting the applicant's case and relating it to the questions of law as to lead me to conclude that there was such an imbalance in the putting of the applicant's case as to amount to a miscarriage of justice.

At the conclusion of the charge, the jury asked for a definition of the word "gross", and whether his Honour could "describe the different levels to get gross negligence?" After some minutes of explanatory comment, his Honour concluded his answer in the following fashion -

"I can't really help. It's your judgment and you just have to do the best you can, bearing in mind that it has to be gross - that means, significant departure, if you like, from the standard. One that justifies the intervention of the criminal law, but it's a matter of judgment."

The jury then resumed consideration of their verdict and three hours later returned verdicts of guilty.

I turn now to the grounds of the application for leave to appeal against conviction.

Ground 1 A miscarriage of justice resulted from evidence being admitted that the applicant was partially naked at the time of the driving the subject of each count; and in particular the evidence was (a) irrelevant to an issue in the trial and (b) was highly prejudicial.

Mr Priest for the applicant submitted that evidence that the applicant had no pants on following the collision did not tend to prove that her driving was grossly negligent, and was thus not probative of any fact in issue. It followed that the evidence was irrelevant and inadmissible. Defence counsel had sought to have the evidence excluded, but the prosecution had submitted that the evidence "might be directly relevant to the circumstances surrounding the commission of the offence at a later stage", depending on the course adopted by the defence. Mr Priest submitted forcefully that the evidence was not only bereft of relevance, but was highly prejudicial.

The submission continued that there had been a fundamental vice in permitting the prosecution to leave open the possible use of the evidence until the defence case was known. Mr Priest argued that the defence is entitled to know at the outset of the trial the case the prosecution seeks to make and the evidence relied upon. The argument continued that in effect the prosecutor here was relieved of the need to make a decision as to whether the applicant's naked state was part of his case of gross negligence at the outset. It followed that in permitting the prosecutor to leave the question open, the judge contemplated that the Crown might change the nature of its case in the course of the trial.

Mr Horgan for the Crown argued that the prosecution case was that the applicant was guilty of culpable driving by reason of her inattention, consisting of her failure to appreciate that she was approaching an intersection and her failure to see the other vehicle approaching from the left. The applicant had admitted "flicking the radio" to adjust the volume and to try to find the station, shortly before the accident, she was driving a powerful car with which she was unfamiliar, at night and at high speed, she had failed to observe three road signs and also the approach of the other car despite having a largely uninterrupted view for a distance of at least one kilometre to her left, and had also failed to observe the very road at which she intended to turn. The applicant had admitted that she had only driven with bare feet a couple of times before and that she "probably shouldn't have". In cross-examination the applicant herself went some way to conceding that she may have been distracted by her state of undress saying "it felt weird but it did not feel uncomfortable to drive, like I was still able to drive."

In all these circumstances, in determining whether or not the applicant was distracted from paying proper attention to her driving, the jury were, I think, plainly entitled to take into account the applicant's state of undress. The evidence was relevant, probative and admissible. Nor is there anything in the submission that the admission of the evidence left it open to the prosecution to change course after the defence case became known. The prosecutor, in agreeing not to introduce the evidence of the admissions made by the applicant to the police officers at the scene, had warned that if the applicant and her passenger gave evidence, he might question them about the issue. Both did give evidence and were cross-examined about the issue (although not, of course, about the excluded admissions). There was no unfairness in this, and no change of course by the prosecution.

But there can be no doubt that the evidence of the applicant's state of undress was highly prejudicial, a matter which I think the judge accepted both when ruling that the evidence was admissible and in argument after defence counsel's address and before charging the jury. As such it was imperative that the jury be clearly directed that the Crown case was one of inattention in the manner outlined above and also firmly warned against speculation or the misuse of the evidence of the applicant's state of undress. The only warning given by his Honour was that contained in the passage cited in paragraph [25] above. The form of the warning given was obviously conditioned by his Honour's concern to rectify the situation brought about by the comments of defence counsel. But the actual warning given was, I think, with respect, quite inadequate for the purpose and is likely to have been understood by the jury as simply the concluding remark in a lengthy direction the principal purport of which was that the jury should not be influenced by "wild, improper, nonsensical or inflammatory statements or suggestions made by counsel".

Accordingly although part (a) of this ground was not made out, in my view part (b) succeeded in the sense that the judge failed to give a proper warning to the jury against misuse of the evidence of the applicant's state of undress, leading to the likelihood that the jury were influenced to convict the applicant on speculation as to sexual conduct that was no part of the prosecution case.

Ground 2 A miscarriage of justice resulted from the trial judge directing the jury as to the use to be made of the final address of counsel for the applicant; and in particular he ought not to have directed that -

(a) "The question of the possible penalties in relation to offences such as these should not have been raised before you in this trial" (and associated comments);

(b) It was "patent nonsense" and "an improper suggestion to have made" that charges would not have been laid had the applicant not been found half-naked (and associated comments);

(c) The arguments concerning Aaron Wroblewski were "nonsense" and

(d) The statements or suggestions of counsel were "wild, improper, nonsensical or inflammatory".

The applicant's submission was that these remarks, which clearly have their origin in the disquiet expressed both by the judge and the prosecutor at the conclusion of defence counsel's address, would have assumed great prominence in the minds of members of the jury. The charge had been very brief and the language employed was very strong. It was submitted that the adverse impression which must have been created of counsel would have been strengthened by the further criticism included in the redirection following the jury's question. Mr Priest submitted that counsel's comments did not deserve the extravagantly worded criticism they attracted, that the effect was to disparage counsel and that the legitimate arguments of the defence would thus have been unacceptably diminished.

In this Court it was argued for the Crown that the remarks of the judge had been restrained and justified and thoroughly considered after lengthy deliberation. The judge, it was argued, was concerned to ensure a fair trial for both parties and sought formulae of words that would correct the excesses of defence counsel and at the same time ensure that the jury was not distracted from its function by the consideration of irrelevant matters or arguments. It was argued that the judge's directions could not be said to have undermined defence counsel's address and had been fair.

I have already stated my view that defence counsel should not have mentioned the possible penalties while addressing the jury and that the comments on the way the charge was laid and concerning Aaron Wroblewski had been unfair and should not have been made. The judge and the prosecutor were both concerned to ensure a fair trial for both parties and to rectify the situation brought about by the defence address. It seems to me, however, with great respect, that the comments made by the judge were so strong and so much repeated that it is unlikely that the jury thereafter would have attached real weight to the arguments made by defence counsel, and that the applicant's prospects of an acquittal would in consequence have been unacceptably diminished. The judge had been placed in a most difficult position by the course the trial had taken, for which, of course, his Honour bore no responsibility at all. I have already stated my view that defence counsel's address had been likely, contrary to counsel's every intention, to have the consequence of attracting the jury's attention to the applicant's state of undress and leading them to improper speculation. Having read the charge a number of times it seems to me that the effect of the judge's criticisms of defence counsel, justified as strong criticism undoubtedly was, may well have been to tip the scales unfairly against the applicant.

Ground 3 The trial judge erred in his directions concerning the elements of negligence in each count; and in particular -

(a) He failed to direct sufficiently or at all that the negligence required was the same as for the crime of manslaughter;

(b) He failed to direct sufficiently or at all that, in order to convict, the jury were required to find such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, and which involved such a high risk that death or grievous bodily harm would follow, that the driving causing death merited criminal punishment; and

(c) He wrongly directed that "gross" means "significant departure" from the applicable standard of care.

Mr Priest accepted that it has been held on numerous occasions that judges, when directing on gross negligence, should confine themselves to the words of s.318(2)(b) of the Crimes Act 1958. It has however been repeatedly emphasised in recent times that culpable driving is a species of involuntary manslaughter, and is punishable as such, and that the requisite negligence is the same as for manslaughter. Accordingly, so it was submitted, the authorities which limit trial judges to the words of the section should be reconsidered. If culpable driving is to be treated as a species of manslaughter then the form of directions appropriate to manslaughter should be given, in order to bring home to a jury the gravity of the conduct required to satisfy the section. Of course no direction appropriate to manslaughter was here given.

A separate submission was directed to the words actually used by the trial judge. His Honour generally avoided definition of the word "gross" but then, in the concluding passage quoted in paragraph [27] above, his Honour directed the jury that "gross" meant a "significant departure". This, it was submitted, was a serious misdirection, since use of the expression "a significant departure" from the applicable standard of care, unacceptably diluted the standard, and had led to a serious miscarriage of justice.

In this Court Mr Horgan submitted that the judge's directions on culpable driving were clear and correct and that in context his Honour's reference to a "significant departure" could have left the jury in no doubt that he was referring to nothing less than a "gross" departure. While it was conceded that the expression "significant departure" would have been wrong in isolation it was argued that the concluding passage in the judge's redirection had been rendered acceptable by the final words which required the departure from the standard to be one that justifies the intervention of the criminal law. It was submitted that the Court should not reconsider the appropriate formula of words used in culpable driving in gross negligence cases, that the present formula is well understood and satisfactory and that, if there is to be a change, it would be more appropriate for a bench of five to consider the question.

Mr Horgan was, I think, right to accept that the use of the expression "significant departure" from the standard would have been wrong in isolation. It has been well-accepted until now that judges should confine themselves to the words of s.318(2)(b)[17], and the present case is, with respect, a good example of why courts have taken this view. The expression used by the judge did, I think, involve a notion qualitatively less serious than gross negligence and the direction was not sufficiently redeemed by the concluding comment that the negligence had to justify the intervention of the criminal law. In my view the direction unacceptably diluted the concept and would have been the more influential in that the comment was in effect the last thing the jury heard before retiring to resume consideration of their verdict. No exception was taken by defence counsel but in the circumstances this should not prevent the ground now being taken.

Should the direction to juries in cases of culpable driving under s.318(2)(b) of the Crimes Act be reconsidered?

The necessary directions to be given to a jury considering a charge of culpable driving by gross negligence under s.318(2)(b) of the Crimes Act, and considerations relevant thereto, have been considered in a long line of Victorian cases extending back to 1971. In R. v. Horvath[18], Winneke, C.J., Little and Stephen, JJ. said of the form of direction to be given to a jury in such a case that -

"We are of the view that the proper course for the trial judge to adopt is to confine himself to the very terms of the relevant legislation to draw attention to the requirement that the jury must be satisfied that there has been a failure on the part of the accused to observe the prescribed standard of care and that the failure must not only be unjustified but must be to a gross degree. The legislature has in words prescribed the degree of departure from the standard of care required to constitute the offence, and to do more than emphasise that the departure from the stated standard of care must be gross is only likely to obscure the nature of the task before the jury. In particular, we would say that, in our view ... recklessness, whilst it may be of evidentiary value, is not an ingredient of the form of culpability referred to in s.318(2)(b), and that it is both unnecessary and undesirable in such a case that a charge should be complicated by references to the standard, in whatever terms it is properly expressed, required to establish manslaughter by criminal negligence."

Then in R. v. Lucas[19] Newton, J. and Norris, A.J. said of s.318(2)(b) that -

"In our opinion, the word `gross' in s.318(2)(b) has the meaning of `glaring, flagrant, monstrous': see the Shorter Oxford English Dictionary. In the present case counsel for the applicant submitted to the learned judge that he ought to be allowed in his final address to the jury to illustrate the meaning of the word `gross' by reference to, and comparison with, the elements of the tort of civil negligence. His Honour rejected this submission, stating that in his view any such reference and comparison would be contrary to what was said in R. v. Horvath, .... But in fact there is nothing in the judgment in R. v. Horvath which either expressly or by implication prohibits a reference to, and comparison with, civil negligence for the purpose of explaining the meaning of s.318(2)(b) to a jury. In the present case, in our opinion, such a reference and comparison would have been both helpful to the jury and fair to the applicant."

But in R. v. Stephenson[20] Young, C.J., Nelson and Harris, JJ. referred to Lucas and said of the passage just quoted that nothing in it suggested that a trial judge should direct a jury that "gross" means "glaring, flagrant, monstrous". Their Honours continued that nothing in Horvath prohibited a comparison between civil negligence and the gross degree of failure to observe the standard of care which a reasonable man would have observed as referred to in s.318(2)(b), and added that the introduction of the three words "glaring", "flagrant" and "monstrous" would in most cases be unnecessary and might be unwise. Their Honours stated their agreement with the view implicit in Horvath that the words which had been prescribed by the legislature needed no further explanation to make their meaning apparent to the jury. In R. v. Shields[21] Young, C.J., Anderson and Brooking, JJ. took the matter one step further, saying that -

"Negligence is defined in s.318(2)(b) as failure 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. In our opinion if negligence in this sense is established the negligence proved is of the same degree as that required to support a charge of manslaughter."

When the four last-mentioned cases were decided, the maximum imprisonment for manslaughter was 15 years, whereas for culpable driving it was seven years. The maximum term for culpable driving first became the same as for manslaughter when it was increased to 15 years in 1992. In 1997 the maximum term for both was increased to 20 years. In recent years judges of this Court have on numerous occasions stated that culpable driving is a species of involuntary manslaughter, and is punishable as such, emphasising that the gross departure from the standard of reasonable care of which the section speaks is the equivalent of criminal negligence sufficient to support the crime of manslaughter: see R. v. Franks[22]; R. v. Wright[23]; R. v. Taylor[24]; R. v. Guariglia[25]; R. v. Tran[26]; Director of Public Prosecutions v. Solomon[27]; Director of Public Prosecutions v. Wareham[28].

Mr Priest told the Court that he had never been in a trial involving a charge of culpable driving by gross negligence in which the jury had not asked the question what the word "gross" means. Mr Horgan, when responding after seeking instructions during the luncheon adjournment, accepted that juries frequently asked what is the meaning of the word "gross", although he also argued that the community today understands the expression well enough. But if it is true that juries now frequently ask what is meant by "gross", then the assertion in the judgment in Stephenson[29] that the word has a natural and well-understood meaning is no longer true, and the time has come for juries to be given more assistance as to their task in cases of this kind.

In Nydam v. R.[30], Young, C.J., McInerney and Crockett, JJ. said of what was necessary to establish manslaughter by criminal negligence that -

"It is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment."

In my opinion where in future a person is charged with culpable driving under s.318(2)(b), the judge should direct the jury that the jury are required to find that the driving of the accused involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, and which involved such a high risk that death or serious injury would follow, that the driving causing death merited criminal punishment. Consistently with Lucas, a reference to and comparison with civil negligence would, I think, also be helpful to the jury. With the consent of my colleagues, I have consulted the President as to the form of this suggested direction, and he has indicated his agreement with it.

Conclusion as to application for leave to appeal against conviction

It follows that the application in relation to conviction in my opinion succeeded on each of grounds 1, 2 and 3. It was therefore unnecessary to consider ground 4. The appeal in relation to conviction was allowed and the convictions of the applicant on both counts were quashed.

The judge in sentencing reasons discussed in detail the prosecution case, including the inference arising from the applicant's alleged admissions to the police officers at the scene of the accident, that some sexual activity had taken place between her and Wroblewski immediately before the accident. The judge mentioned the evidence of both parties denying any such behaviour at that time and asserting that Wroblewski was asleep when the collision occurred and the applicant's evidence of the dare being her explanation for driving half-naked. Having seen the applicant and Wroblewski give evidence, his Honour stated his view that both were witnesses of truth and that this evidence was credible.

The judge said of the collision that the applicant was clearly not keeping a proper lookout, and was instead concentrating on the road ahead. His Honour then said -

"It seems to me that the proper analysis of this offending and the one likely to have been the basis of the jury's verdict is that the collision was caused by your failure to keep a proper lookout, i.e. your failure to give proper attention to the road ahead other than to the road surface proximate to or almost immediately ahead of your car which explains your failure to see the signs or the deceased's vehicle and to slow down or stop before entering the intersection. You were too concerned, that is, with keeping your car on the bitumen surface and focusing too much on the road immediately ahead of you because of your relative unfamiliarity with this particular car, this road, this intersection and night driving on roads such as this, and perhaps also because you were distracted by your semi-nakedness and/or were fiddling with the radio. You were not concentrating sufficiently on what you might expect or encounter further along the road. These offences are, therefore, I think offences of inattention or lack of proper attention albeit inattention, to a degree, found by a jury to be sufficient to warrant conviction of these offences. Your driving, therefore, can be contrasted with more flagrant or blatant examples of grossly negligent driving. There was no deliberate or flagrant disregard of the law or of road signs or for the safety of others as is so often a feature of cases of culpable driving. Your negligent driving, whilst found by the jury to be grossly negligent, was at the lower end of such negligence."

This is not a case where the decision to allow the appeal against conviction was made on the basis that there was no sufficient case to go to the jury or where for like reasons the conviction was unsafe or unsatisfactory. The Crown case of inattention, as previously described, was, in my view, one on which it was open to the jury to convict the applicant of both counts.

Mr Horgan submitted that if the appeal against conviction were allowed, the court should direct a re-trial of the applicant, leaving to the Director of Public Prosecutions the decision whether a re-trial would proceed.

The Court's jurisdiction to order a new trial is conferred by s.568(2) of the Crimes Act 1958, which provides that upon allowing an appeal and quashing a conviction the Court shall "either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had." A court is thus given a discretion of considerable amplitude, of which it was said in R. v. Wilson & Grimwade[32] that the form of the sub-section -

"ought not, however, to obscure the undoubted discretion exercisable by the Court to order or decline to order a re-trial without first considering whether it should direct the entry of a judgment and verdict of acquittal. If the Court thinks it right not to order a re-trial it is obliged, subject to any relevant special provision contained in Pt VI, to direct a judgment and verdict of acquittal to be entered. Subject to any such special provision, it must do one or the other. The history of the practice and of the legislation serves to make the matter clear."

In Cheatley v. R.[33], Everett, J. said of the like Tasmanian discretionary jurisdiction that -

"The factors which should influence an appellate court in exercising such a discretion will depend basically on all the facts of each individual case, the circumstances which surrounded the trial, the nature of the miscarriage of justice, the strength of the prosecution case and a full and fair balancing of the public interest and the personal interests of the successful appellant. Such considerations are not exhaustive."

In my opinion the interests of justice in the present case dictate that an order for a new trial should not be made. My reasons are as follows. While I accept that the Crown case was sufficient to entitle a jury to convict the applicant, I agree with the characterisation by the trial judge of the applicant's conduct and his conclusion that her negligent driving was at the lower end of gross negligence. Secondly, the applicant has now served most of the period of her sentence which was required to be served in custody. The Director of Public Prosecutions has, of course, appealed against the inadequacy of this sentence and we did not hear Mr Horgan in oral argument in support of the Director's appeal. The Court did, however, have the benefit of comprehensive written submissions on the Director's behalf in this respect. Having carefully read them, I cannot conceive of any further argument which would lead me to allow the Director's appeal. The judge's sentence was lenient but fully reasoned and it was in my view within range. Thirdly, the applicant could not have

been regarded as responsible for the errors which led me to the opinion that grounds 1 and 3 should succeed, and which would each in my judgment have resulted in the success of the appeal. Fourthly, the fatal accident occurred on 2 April 2000, and two years had elapsed before the applicant stood her trial. Nearly three years would have passed since 2 April 2000 before any re-trial of the applicant could occur. In all these circumstances, it was my view that the proper exercise of this Court's discretion was to direct that verdicts of acquittal be entered. It should be understood that the judgment and verdicts of acquittal so entered are not necessarily to be taken to be indicative of innocence.

I have had the benefit of reading the reasons for judgment of Ormiston and Charles, JJ.A. I agree in their reasons that the convictions be quashed, that the appeal be allowed and a direction given that verdicts of acquittal be entered. In particular, I express my agreement in the form of direction proposed by Charles, J.A. in paragraph [46] where a person is charged with culpable driving under s.318(2)(b). Further, I agree with Charles, J.A. that the Crown case was one on which it was open to the jury to convict the applicant of both counts.

[3] Cited in para.[42] of Charles, J.A.'s judgment.

[4] [1952] HCA 3; (1952) 85 C.L.R. 437 at 466 per Dixon, Williams, Webb, Fullagar and Kitto, JJ.

[5] See Holland v. The Queen (1993) 67 A.L.J.R. 946 at 951; Melbourne v. The Queen [1999] HCA 32; (1999) 198 C.L.R. 1 at 53; R.P.S. v. The Queen [2000] HCA 3; (2000) 199 C.L.R. 620 at 637 para.[41]; Azzopardi v. The Queen (2001) 205 C.L.R. 50 at 69; R. v. Chai (2002) 76 A.L.J.R. 628 at 632; Murray v. The Queen [2002] HCA 26; (2002) 76 A.L.J.R. 899 at 906 para.[37].

[10] See the cases cited by Charles, J.A. at para.[43].

[11] (1947) A.L.R. 615 at 616 per Dixon, J.

[17] R. v. Horvath [1972] VicRp 60; [1972] V.R. 533 at 539; R. v. Stephenson [1976] V.R. 377 at 383; R. v. Franks [1998] VSCA 100; [1999] 1 V.R. 518 at [5].

At a glance

Court

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Before

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Judgment (113 paragraphs)

Parties